Respondents Brief — Environmental Protection Agency, Petitioner v. Calumet Shreveport Refining, L.L.C., et al.
Supreme Court briefJan 21, 2025
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No. 23-1229
In the Supreme Court of the United States
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ENVIRONMENTAL PROTECTION AGENCY,
Petitioner,
v.
CALUMET SHREVEPORT REFINING, LLC, ET AL.,
Respondents
___________________
On Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
___________________
BRIEF FOR THE SMALL REFINERY
RESPONDENTS
___________________
LeAnn M. Johnson Koch
Alexandra M. Bromer
Jonathan G. Hardin
Aimee E. Ford
PERKINS COIE LLP
700 Thirteenth Street N.W.
Suite 800
Washington, DC 20005-3960
Eric Wolff
PERKINS COIE LLP
1201 3rd Avenue
Suite 4900
Seattle, WA 98101
Michael R. Huston
Counsel of Record
Karl J. Worsham
Jordan M. Buckwald
PERKINS COIE LLP
2525 E. Camelback Road
Suite 500
Phoenix, AZ 85016-4227
(202) 434-1630
mhuston@perkinscoie.com
Sopen Shah
PERKINS COIE LLP
33 E. Main Street, Suite 201
Madison, WI 53703
QUESTION PRESENTED
The Clean Air Act requires the Environmental Protection Agency (“EPA”) to grant an exemption from the Act’s
Renewable Fuel Standard (“RFS”) to a small refinery
when compliance with the RFS would cause the refinery
disproportionate economic hardship in a given year.
42 U.S.C. § 7545(o)(9)(B)(i). The six small refinery respondents here separately petitioned EPA for hardship
exemptions for particular compliance years. EPA concluded, after “consider[ing] each [respondent’s] individual
refinery information,” that each of the respondents was
not entitled to hardship relief and denied the petitions.
Pet.App.14a-15a. Respondents then petitioned for judicial
review as permitted by the Clean Air Act, 42 U.S.C.
§ 7607(b)(1). The question presented is:
Whether an EPA decision denying a small refinery’s
RFS hardship petition is a “locally or regionally applicable” action, such that a court challenge to that action is
properly venued in a regional circuit court, or is instead a
“nationally applicable” action or an action “based on a
determination of nationwide scope or effect” that must be
challenged only in the U.S. Court of Appeals for the D.C.
Circuit. 42 U.S.C. § 7607(b)(1).
ii
TABLE OF CONTENTS
Statutory Provision Involved ............................................. 1
Introduction ......................................................................... 3
Statement ............................................................................. 6
A. Statutory and regulatory background .................. 6
1. Venue for petitions for review under the
Clean Air Act ..................................................... 6
2. Small-refinery hardship petitions under
the Act’s RFS Program .................................. 10
B. The present controversy ...................................... 14
Summary of Argument ..................................................... 19
Argument ........................................................................... 22
A. The Fifth Circuit’s decision was correct. ............ 24
1. The “final action[s]” are EPA’s denials of
each small-refinery’s hardship petition. ....... 24
2. EPA’s denials of the hardship petitions are
“locally or regionally applicable” actions. ..... 28
3. EPA’s actions were based on local
economic facts, not any nationwide
statutory determination. ................................ 31
B. EPA’s arguments seeking D.C. Circuit review
fail............................................................................ 35
1. EPA gets the “action” wrong. ........................ 36
2. EPA fails to establish that the hardship
decisions are nationally applicable. ............... 38
3. The hardship decisions were not based
on a determination of nationwide scope
or effect............................................................. 43
Conclusion .......................................................................... 51
iii
Appendix – 42 U.S.C. § 7545(o)........................................ 1a
Appendix – 42 U.S.C. § 7607(b) ..................................... 27a
Appendix – 42 U.S.C. § 1857h-5 (1970) ......................... 29a
Appendix – 42 U.S.C. § 7607 (1982) .............................. 30a
iv
TABLE OF AUTHORITIES
Pages
CASES
American Rd. & Transp. Builders Ass’n v. EPA,
705 F.3d 453 (D.C. Cir. 2013) ............................ 7, 28, 39
Americans for Clean Energy v. EPA,
864 F.3d 691 (D.C. Cir. 2017) ...................................... 30
ATK Launch Sys., Inc. v. EPA,
651 F.3d 1194 (10th Cir. 2011) ................................ 8, 28
Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204 (1988) ....................................................... 15
Clean Water Action Council of Ne. Wis., Inc. v. EPA,
765 F.3d 749 (7th Cir. 2014) ........................................ 29
Cuomo v. Clearing House Ass’n, L.L.C.,
557 U.S. 519 (2009) ....................................................... 44
Dalton Trucking, Inc. v. EPA,
808 F.3d 875 (D.C. Cir. 2015) ................................ 29, 31
Department of Homeland Sec. v. Regents of the
Univ. of California,
591 U.S. 1 (2020) ........................................................... 40
Ergon-West Virginia, Inc. v. EPA,
896 F.3d 600 (4th Cir. 2018) ........................................ 14
Ergon-West Virginia, Inc. v. EPA,
980 F.3d 403 (4th Cir. 2020) ........................................ 14
Fischer v. United States,
603 U.S. 480 (2024) ......................................................... 8
HollyFrontier Cheyenne Refin., LLC v.
Renewable Fuels Ass’n,
594 U.S. 382 (2021) ............................................ 11-12, 14
v
Kentucky v. EPA,
123 F.4th 447 (6th Cir. 2024) ............. 6, 8, 10, 25, 27-29,
32, 36-38, 40
Kentucky v. EPA,
Nos. 23-3216/23-3225, 2023 WL 11871967
(6th Cir. July 25, 2023) ........................................... 24, 31
Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024) ................................................. 32, 36
Mohamad v. Palestinian Auth.,
566 U.S. 449 (2012) ....................................................... 32
NAACP v. Federal Power Comm’n,
425 U.S. 662 (1976) ....................................................... 37
National Env’t Dev. Ass’ns Clean Air Project v. EPA,
891 F.3d. 1041 (D.C. Cir. 2018) ..................................... 5
National Fed’n of Indep. Bus. v. Dep’t of Lab.,
Occupational Safety & Health Admin.,
595 U.S. 109 (2022) ....................................................... 44
Niz-Chavez v. Garland,
593 U.S. 155 (2021) ....................................................... 49
NRDC v. EPA,
475 F.2d 968 (D.C. Cir. 1973) ........................................ 9
Renewable Fuels Ass’n v. EPA,
948 F.3d 1206 (10th Cir. 2020) .................................... 14
Sierra Club v. EPA,
47 F.4th 738 (D.C. Cir. 2022) ............................ 10, 31-32
Sinclair Wyoming Refin. Co. LLC v. EPA,
114 F.4th 693 (D.C. Cir. 2024) ............................... 11, 18
Sinclair Wyoming Refin. Co. v. EPA,
887 F.3d 986 (10th Cir. 2017) ...................................... 14
vi
Texas v. EPA,
829 F.3d 405 (5th Cir. 2016) ................ 10, 24, 29, 31, 32
Texas v. EPA,
983 F.3d 826 (5th Cir. 2020) ........................................ 10
Texas v. EPA,
No. 10-60961, 2011 WL 710598 (5th Cir.
Feb. 24, 2011) ................................................................ 28
Texas v. EPA,
No. 23-60069, 2023 WL 7204840
(5th Cir. May 1, 2023)............................ 10, 24-25, 30, 36
Travis v. United States,
364 U.S. 631 (1961) ....................................................... 42
United States v. Bass,
404 U.S. 336 (1971) ....................................................... 42
United States v. Houlihan,
92 F.3d 1271 (1st Cir. 1996) ......................................... 40
West Virginia Chamber of Commerce v. Browner,
166 F.3d 336 (4th Cir. 1998) ........................................ 30
West Virginia v. EPA,
90 F.4th 323 (4th Cir. 2024) ............................. 10, 39, 44
STATUTES
42 U.S.C. Ch. 85.............................................................. 6, 32
42 U.S.C. § 1857c-5(e) (1973) ............................................... 9
42 U.S.C. § 1857c-10(c)(2) .................................................... 2
42 U.S.C. § 7410 ................................................................ 2, 7
42 U.S.C. § 7411 ............................................................ 1, 2, 6
42 U.S.C. § 7412 ............................................................ 1, 2, 6
42 U.S.C. § 7413 .................................................................... 2
vii
42 U.S.C. § 7414(a)(3)........................................................... 2
42 U.S.C. § 7419 .................................................................... 2
42 U.S.C. § 7420 .................................................................... 2
42 U.S.C. § 7521 .................................................................... 1
42 U.S.C. § 7545 .................................................................... 2
42 U.S.C. § 7545(o) ............................................................. 11
42 U.S.C. § 7545(o)(7)......................................................... 43
42 U.S.C. § 7545(o)(9)................................................... 38, 43
42 U.S.C. § 7545(o)(9)(A) ............................................... 3, 12
42 U.S.C. § 7545(o)(9)(A)(i) ............................................... 26
42 U.S.C. § 7545(o)(9)(A)(ii) ............................ 13, 26, 33, 43
42 U.S.C. § 7545(o)(9)(B) ......... 3-4, 22, 25-26, 33, 37, 43, 48
42 U.S.C. § 7545(o)(9)(B)(i) ....................... 12, 13, 25, 26, 34
42 U.S.C. § 7545(o)(9)(B)(ii) ........................................ 13, 25
42 U.S.C. § 7545(o)(9)(B)(iii) ........................... 13, 25, 26, 40
42 U.S.C. § 7571 .................................................................... 2
42 U.S.C. § 7607(b)(1)
......................................................3-4, 6-10, 17, 19, 21-25,
28-32, 34-37, 40-43, 45-50
Clean Air Act Amendments of 1977, Pub. L. No. 95-95,
91 Stat. 685 (Aug. 7, 1977) ............................................. 6
REGULATIONS
40 C.F.R. § 80.1406............................................................. 11
40 C.F.R. § 80.1426............................................................. 11
40 C.F.R. § 80.1427............................................................. 11
viii
40 C.F.R. § 80.1428............................................................. 11
40 C.F.R. § 80.1429............................................................. 11
40 C.F.R. § 80.1441(e)(2) ................................................... 13
41 Fed. Reg. 56,767 (Dec. 30, 1976) ................................ 8, 9
72 Fed. Reg. 23,900 (May 1, 2007) .................................... 12
75 Fed. Reg. 14,670 (Mar. 26, 2010) ................................. 12
86 Fed. Reg. 70,999 (Dec. 14, 2021) .................................. 15
OTHER AUTHORITIES
U.S. Dep’t of Energy, Small Refinery Exemption Study:
An Investigation into Disproportionate Economic
Hardship (March 2011) ................................................ 12
THE OXFORD ENGLISH DICTIONARY (1971) .............. 40, 41
S. Rep. No. 1196, 91st Cong., 2d Sess. 41 (1970)............. 41
U.S. Gov’t Accountability Office, Renewable Fuel
Standard: Actions Needed to Improve DecisionMaking in the Small Refinery Exemption Program,
GAO23104273 (Nov. 2022) ........................................... 13
In the Supreme Court of the United States
_______________
No. 23-1229
ENVIRONMENTAL PROTECTION AGENCY,
Petitioner,
v.
CALUMET SHREVEPORT REFINING, LLC, ET AL.,
Respondents
___________________
On Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
___________________
BRIEF FOR THE SMALL REFINERY
RESPONDENTS
____________
STATUTORY PROVISION INVOLVED
The Clean Air Act provides at 42 U.S.C. § 7607(b), in
relevant part, that:
Administrative proceedings and judicial review
(b) Judicial review
(1) A petition for review of action of the Administrator [of the Environmental Protection Agency] in promulgating any national primary or secondary ambient air
quality standard, any emission standard or requirement
under section 7412 of this title, any standard of performance or requirement under section 7411 of this title,[ ]
any standard under section 7521 of this title (other than a
standard required to be prescribed under section
7521(b)(1) of this title), any determination under section
7521(b)(5) of this title, any control or prohibition under
2
section 7545 of this title, any standard under section 7571
of this title, any rule issued under section 7413, 7419, or
under section 7420 of this title, or any other nationally
applicable regulations promulgated, or final action taken,
by the Administrator under this chapter may be filed only
in the United States Court of Appeals for the District of
Columbia. A petition for review of the Administrator’s
action in approving or promulgating any implementation
plan under section 7410 of this title or section 7411(d) of
this title, any order under section 7411(j) of this title,
under section 7412 of this title, under section 7419 of this
title, or under section 7420 of this title, or his action under
section 1857c-10(c)(2)(A), (B), or (C) of this title (as in
effect before August 7, 1977) or under regulations thereunder, or revising regulations for enhanced monitoring
and compliance certification programs under section
7414(a)(3) of this title, or any other final action of the
Administrator under this chapter (including any denial or
disapproval by the Administrator under subchapter I)
which is locally or regionally applicable may be filed only
in the United States Court of Appeals for the appropriate
circuit. Notwithstanding the preceding sentence a petition
for review of any action referred to in such sentence may
be filed only in the United States Court of Appeals for the
District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such
action the Administrator finds and publishes that such
action is based on such a determination.
*
This and other pertinent statutory provisions are
reprinted in the appendix to this brief. App.1a-31a, infra.
3
INTRODUCTION
The Clean Air Act (“CAA” or “Act”) assigns the venue
for a petition for judicial review of final agency action by
asking whether the challenged action is “nationally applicable” (reviewed by the D.C. Circuit) or “locally or regionally applicable” (reviewed by the regional circuit courts).
42 U.S.C. § 7607(b)(1). 1 Determining venue thus requires
focusing with precision on the “action” that the Environmental Protection Agency (“EPA”) was authorized by the
CAA to take: the “final action taken … under this chapter.” Ibid. (“[T]his chapter” is the CAA.)
Once the final action is properly identified, the venue
provision is straightforward. Most EPA actions under the
Act are rulemakings or similar actions that apply throughout the entire nation, or else are adjudications or similar
decisions involving individual States or regulated entities.
The former go to the D.C. Circuit, the latter to the regional circuit courts—save only in the exceptional circumstance where the CAA’s text directs EPA to base a local
action on a “determination” about the whole nation.
Applying those statutory instructions here shows why
the Fifth Circuit below got the venue question right. This
case concerns a type of statutory forbearance from the
CAA’s Renewable Fuel Standard (“RFS”) that affects
only small refineries. Small refineries like respondents
may petition EPA for an exemption from the RFS obligation by showing that they will face disproportionate economic hardship from compliance with the RFS in a given
year. § 7545(o)(9)(A)-(B). Until a presidential administration change in 2021, EPA had repeatedly acknowledged
that its decisions on small refineries’ hardship petitions
1
All statutory citations are to Title 42 of the United States
Code.
4
are quintessential locally applicable actions that Section
7607(b)(1) refers to the regional circuits. That’s because
each EPA “final action” on a hardship-exemption petition
adjudicates the rights of only one small refinery located in
one place, and the “chapter” (the CAA) requires those actions to be based on consideration of each small refinery’s
own economic hardship. § 7607(b)(1); see § 7545(o)(9)(B).
EPA changed its position on venue and started deliberately attempting to re-direct judicial challenges to its
preferred court, the D.C. Circuit, only after it suffered a
string of defeats in regional circuit courts that found EPA
had wrongly decided hardship petitions. EPA now argues
that, because it published its decisions on multiple small
refineries’ pending hardship petitions bundled together in
two explanation documents (denying every pending petition), it was able to convert what it has long agreed were
locally applicable final actions into just two nationally
applicable actions. EPA was transparent about its goal of
making the D.C. Circuit the only court allowed to review
its latest denial decisions.
EPA’s new venue position is contrary to the CAA’s
text, and the Fifth Circuit correctly rejected it. EPA was
able to produce the bundled decisions only by ignoring the
statutory command to decide hardship petitions individually as they come in. More fundamentally, the two explanation documents were bundles of individual final actions
under the CAA. EPA’s choice about how to publish its
decisions cannot change the nature of the “final action
taken … under this chapter,” which is what matters for
venue. § 7607(b)(1). It is the statutory text—“th[e] chapter”—that establishes what actions EPA is permitted to
take. And here, every relevant provision of the chapter
confirms that EPA was required to produce individualized
5
final actions based on individual petitioning refineries’
economic circumstances.
In fact, that is just what EPA did. EPA itself has
stated that it denied all of the small-refinery respondents’
RFS hardship petitions because it “determin[ed],” after
“consider[ing] each [refinery’s] individual refinery information,” that each respondent was not experiencing disproportionate economic hardship. Pet.App.14a-15a. EPA
concluded, after examining each respondent’s evidence,
that each ostensibly passes on 100% of its RFS compliance
costs in the price of the fuel it sells. Those were the conclusions on which EPA based its decisions to deny hardship relief to these small-refinery respondents, each of
which received an individualized explanation from EPA
analyzing its own economic evidence.
Multiple courts of appeals (including the D.C. Circuit)
have since held that EPA’s merits reasoning about the
small refineries’ ability to pass through their RFS compliance costs was arbitrary and capricious and unsupported
by the record evidence. But the venue issue before this
Court is simpler. To borrow Judge Silberman’s description of the venue provision that EPA endorses (U.S. Br.
18): EPA’s answer to whether a petitioning small refinery
like Calumet Shreveport located in Shreveport, Louisiana, does or does not successfully pass through its RFS
compliance costs in its fuel sales hardly qualifies as a “regulatory issue[ ] of national importance” that belongs in the
D.C. Circuit. National Env’t Dev. Ass’ns Clean Air Project v. EPA, 891 F.3d. 1041, 1054 (D.C. Cir. 2018) (Silberman, J., concurring).
The Fifth Circuit’s judgment should be affirmed.
6
STATEMENT
A. Statutory and regulatory background
1. Venue for petitions for review under the Clean
Air Act
Section 7607(b)(1) governs “[j]udicial review” of “petitions for review” of EPA’s “final action[s] under this chapter,” i.e., under the Clean Air Act. See Kentucky v. EPA,
123 F.4th 447, 458, 461 (6th Cir. 2024); 42 U.S.C. Ch. 85,
Codification Note (“this chapter” is the CAA). As relevant
here, Section 7607(b)(1)’s venue instructions consist of
three “lengthy” sentences. Kentucky, 123 F.4th at 458.
a. The first sentence describes the proper venue for
challenging EPA final actions that apply to the nation as
a whole. That sentence begins by enumerating several
CAA provisions authorizing EPA to take national actions.
For example, when EPA promulgates a national primary
or secondary air quality standard under Section 7412, or
sets a standard of performance for all new stationary
sources of emissions under Section 7411, challenges to
those national actions “may be filed only in” the D.C. Circuit. § 7607(b)(1). In 1977, Congress amended the venue
provision to add a catchall phrase to that sentence: In
addition to the enumerated national actions, “any other
nationally applicable regulations promulgated, or final
action taken, by the Administrator under this chapter”
are reviewable only in the D.C. Circuit. Ibid.; see Clean
Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat.
685 (Aug. 7, 1977). 2
2
For ease of reference, the 1970 and 1982 versions of the
venue provision (the latter including the 1977 amendments) are
provided at App., infra, 29a and 30a, respectively.
7
b. The second sentence follows the same basic structure but for non-national final agency actions. It first enumerates CAA provisions authorizing EPA to take actions
that apply to less than the whole country, and it makes
those actions reviewable only in regional circuit courts.
For example, when EPA approves or promulgates a state
implementation plan under Sections 7410 or 7411(d), a
challenge to that action “may be filed only in the United
States Court of Appeals for the appropriate circuit.”
§ 7607(b)(1). The second sentence of Section 7607(b)(1),
like the first, also includes a catchall phrase added by the
same 1977 amendment: “any other final action of the
Administrator under this chapter … which is locally or
regionally applicable” is reviewable only in “the appropriate circuit” court. Ibid.
Identifying which circuit court is “appropriate” for
reviewing local or regional final action is usually easy.
That’s because for these EPA actions, the relevant substantive CAA provision makes it clear that the action
affects particular regulated facilities or States, each of
which is governed by a regional circuit court. When EPA
promulgates a regional action that happens to touch more
than one federal circuit—for example, approving or rejecting an implementation plan for the Metropolitan Kansas City air-quality-control region—there may be more
than one appropriate circuit.
c. The courts of appeals and EPA agree that, to
assess the national vs. local applicability of an EPA action
for purposes of Section 7607(b)(1), courts look only “to the
face” of the action as that action is authorized by the
CAA—not to the challenger’s arguments in the petition
for review, and not to the effects of the action or the reasoning within it. American Rd. & Transp. Builders Ass’n
v. EPA, 705 F.3d 453, 456 (D.C. Cir. 2013) (Kavanaugh,
8
J.); see also, e.g., ATK Launch Sys., Inc. v. EPA, 651 F.3d
1194, 1197 (10th Cir. 2011); U.S. Br. 20 (invoking “the face
of ” the actions). That focus on what action EPA took follows from the statutory instruction to look to the “final action … under this chapter” to resolve venue. § 7607(b)(1).
The textual structure of Section 7607(b)(1)’s first two
sentences—enumerated lists of CAA actions followed by
catchall phrases—indicates that courts should apply the
catchall phrases by reasoning by analogy to the enumerated provisions. The catchall phrases use a “collective
term”—any other final action—“at the end of a list of specific items,” so the collective term is “controlled and
defined by reference to the specific classes that precede
it.” Fischer v. United States, 603 U.S. 480, 487 (2024)
(ejusdem generis canon) (cleaned up); see Kentucky, 123
F.4th at 460 (using ejusdem generis to interpret Section
7607(b)(1)). Thus, an EPA final action pursuant to an
unenumerated CAA provision is “nationally applicable” if
it applies to the whole nation like the enumerated actions
in the first sentence of Section 7607(b)(1) do. And a final
action is “locally or regionally applicable” if it applies to
less than the whole nation, as the enumerated CAA
actions in the second sentence do. Ibid.
d. The third sentence contemplates a narrow exception for certain rare EPA actions that, though locally or
regionally applicable, are “based on a determination of
nationwide scope or effect.” § 7607(b)(1). That sentence
was added by the same 1977 amendment referenced
above, prompted by a recommendation from the Administrative Conference of the United States that included a
statement from EPA General Counsel William Frick. See
41 Fed. Reg. 56,767 (Dec. 30, 1976).
Frick had identified a circumstance where the thirdsentence exception was needed. 41 Fed. Reg. at 56,768-
9
56,769. Under a particular CAA provision at the time
(since repealed), EPA could grant extensions of a State’s
attainment date for certain national ambient air quality
standards—actions that were locally applicable—only “if
after review ... the Administrator determine[d] that,”
among other things, regulated emission sources were
“unable to comply with the [applicable] requirements …
because the necessary technology or other alternatives
are not available or will not be available soon enough to
permit compliance.” 42 U.S.C. § 1857c-5(e) (1973) (emphasis added); see NRDC v. EPA, 475 F.2d 968 (D.C. Cir.
1973) (explaining the available-technology determination
and corresponding extension action).
Frick’s statement, which the government agrees (U.S.
Br. 37) was the genesis of the third sentence in Section 7607(b)(1), illustrates how that exception works: If
the statutory text requires a particular EPA action to be
based on a statutory “determination” about a circumstance equally affecting the whole nation, then a challenge to that action should go to the D.C. Circuit.
Congress provided that “if ” a locally applicable action “is
based on a determination of nationwide scope or effect and
if in taking such action [EPA] finds and publishes that
such action is based on such a determination,” then the
proper venue is the D.C. Circuit. § 7607(b)(1).
The third sentence thus establishes two independent
requirements for this exception: the action must actually
be based on a determination of nationwide scope or effect,
and EPA must publish a finding that it is so based. Accord
U.S. Br. 30. Whether EPA publishes that finding is the
only part of Section 7607(b)(1) that contemplates any discretion for the agency. The text is thus “clear” that “[t]he
court—not EPA—determines both the scope of an
action’s applicability and whether it was based on a deter-
10
mination of nationwide scope or effect.” Texas v. EPA
(“Texas 2020”), 983 F.3d 826, 833 (5th Cir. 2020); accord
Sierra Club v. EPA, 47 F.4th 738, 746 (D.C. Cir. 2022).
e. In sum, the CAA allocates venue for regulatory
challenges depending on the nature of the “final action”
under review: If EPA’s “final action … under this chapter” is “nationally applicable,” then the proper venue is
the D.C. Circuit. § 7607(b)(1). If EPA’s “final action …
under this chapter” is “locally or regionally applicable,”
then the proper venue is presumptively a regional circuit
court. Ibid.; see Texas v. EPA (“Texas 2016”), 829 F.3d
405, 419, 424 (5th Cir. 2016). If EPA can demonstrate both
that a locally applicable action is “based on a determination of nationwide scope or effect”—that is, a textually
called for determination reaching all the nation’s regulated parties equally—“and” that EPA “f [ound] and publishe[d] that such action is based on such a determination,”
then venue is proper in the D.C. Circuit. § 7607(b)(1).
The first question for venue, then, is: What is the “final
action … under this chapter” that EPA was authorized to
take? To answer that question, courts “look primarily to
the text of the statute,” specifically to the relevant CAA
provision that is “the legal source of [EPA’s] authority to
take the challenged action[ ].” Texas v. EPA (“Texas
2023”), No. 23-60069, 2023 WL 7204840, at *4 (5th Cir.
May 1, 2023); see Kentucky, 123 F.4th at 460-462; West
Virginia v. EPA, 90 F.4th 323, 329 (4th Cir. 2024).
2. Small-refinery hardship petitions under the
Act’s RFS Program
a. The CAA’s RFS program requires that increasing
amounts of renewable fuels be blended into the transportation fuel (gasoline and diesel) sold in the United States.
§ 7545(o)(2)(A)(i), (B)(i)(I)-(IV); see HollyFrontier Cheyenne Refin., LLC v. Renewable Fuels Ass’n, 594 U.S. 382,
11
385-387 (2021). EPA first sets annual renewable fuel percentage standards across the industry. § 7545(o)(3). Obligated parties—refiners and importers of transportation
fuel—use those standards to learn their own annual volume obligations for each renewable-fuel category. See 40
C.F.R. § 80.1406.
Obligated parties comply with their annual RFS obligations by “retiring” credits called renewable identification numbers (“RINs”). 40 C.F.R. § 80.1427. A RIN is
generated when renewable fuel (ethanol, for example) is
manufactured. Id. § 80.1426. The RIN remains attached
to the volume of renewable fuel until it is blended into
transportation fuel, at which point the RIN is “separated.” Id. §§ 80.1428, 80.1429. RINs have a limited life;
they can be used for compliance only in the year they are
generated or the next compliance year. § 7545(o)(5)(C).
Obligated parties demonstrate RFS compliance by securing sufficient separated RINs, either by generating RINs
through blending renewable fuels or by purchasing RINs
from others that blend. § 7545(o)(5)(B).
b. “The RFS program reflects a carefully crafted legislative bargain to promote renewable fuels, but also to
provide an exemption mechanism for small refineries.”
Sinclair Wyoming Refin. Co. LLC v. EPA, 114 F.4th 693,
711 (D.C. Cir. 2024). A “small refinery” has an average
aggregate daily crude oil throughput for a calendar year
of 75,000 barrels or less. § 7545(o)(1)(K). Congress recognized that “escalating [RFS] obligations could work special burdens on small refineries,” many of which “lack the
inherent scale advantages of large refineries” and are limited in their ability to blend renewable fuels—or are unable to blend at all. HollyFrontier, 594 U.S. at 386 (cleaned
up). Congress also understood that small refineries are
12
essential to the nation’s energy supply and often “a major
source of jobs in rural communities.” Id. at 386-387.
EPA has acknowledged that “[m]any” small refineries
“do not have access to renewable fuels or the ability to
blend them, and so must use credits to comply” with the
RFS. 72 Fed. Reg. 23,900, 23,904 (May 1, 2007). Small
refineries that cannot separate enough RINs through
blending are forced to buy RINs on an unregulated secondary market where prices can fluctuate wildly. See 75
Fed. Reg. 14,670, 14,722 (Mar. 26, 2010) (explaining RIN
spot markets); HollyFrontier, 594 U.S. at 398 (noting one
year where RIN prices “shot up by as much as 100%”).
Congress initially exempted all small refineries from
the RFS until 2011, and it directed the U.S. Department
of Energy (“DOE”) to study whether RFS compliance
would impose disproportionate economic hardship on
small refineries. § 7545(o)(9)(A). DOE completed that
study in 2011, finding that small refineries “have particular obstacles that would make compliance more costly
than those of large integrated companies.” DOE, Small
Refinery Exemption Study: An Investigation into Disproportionate Economic Hardship 3, 32, 37 (March 2011)
(“2011 DOE Study”). 3 DOE also recognized that small
refineries’ hardship would grow increasingly acute as
renewable-fuel blending mandates increased. Id. at 17-18.
To avoid damaging small refineries, Congress created
a permanent safety valve that allows a small refinery to
petition EPA for an exemption from its annual RFS obligation “for the reason of disproportionate economic hardship.” § 7545(o)(9)(B)(i). The Act provides that “[a] small
refinery may at any time petition the Administrator” for
3
https://www.epa.gov/sites/default/files/2016-12/documents/small-refinery-exempt-study.pdf.
13
an exemption—and thus requires each small refinery to
petition separately for hardship relief. Ibid. (emphasis
added). Each granted petition frees only one small refinery from its RFS obligation for the year(s) involved in the
petition, based on that refinery’s economic circumstances.
§ 7545(o)(9)(B)(i)-(ii); 40 C.F.R. § 80.1441(e)(2). EPA must
decide each small-refinery hardship petition in “consultation” with DOE after “consider[ing] the findings” of DOE’s
2011 small-refinery study along with “other economic factors.” § 7545(o)(9)(A)-(B).
Congress required EPA to decide any hardship
petition submitted by a small refinery “not later than 90
days after” receipt, because a small refinery cannot plan
adequately for RFS compliance until it knows whether it
has an obligation. § 7545(o)(9)(B)(iii). But EPA has failed
to meet that deadline for almost 90 percent of hardship
petitions submitted since 2013, causing significant uncertainty for small refineries. See U.S. Government Accountability Office, Renewable Fuel Standard: Actions Needed
to Improve Decision-Making in the Small Refinery Exemption Program 20, GAO23104273 (Nov. 2022). 4
c. When EPA has denied small-refinery hardship
petitions, the petitioners sometimes sought judicial review.
Regarding venue for those challenges, EPA repeatedly
acknowledged that RFS hardship-exemption decisions
are “quintessentially local action[s]” that must be reviewed
in the regional circuit courts. E.g., EPA Motion to Dismiss
18, Advanced Biofuels Ass’n v. EPA, No. 18-1115, Dkt.
1740614 (D.C. Cir. July 13, 2018).
On the merits of those challenges, EPA suffered a
streak of losses where circuit courts vacated its hardship
decisions. See Sinclair Wyoming Refin. Co. v. EPA, 887
4
https://www.gao.gov/products/gao-23-104273.
14
F.3d 986 (10th Cir. 2017); Ergon-West Virginia, Inc. v.
EPA, 896 F.3d 600 (4th Cir. 2018); Renewable Fuels Ass’n
v. EPA, 948 F.3d 1206 (10th Cir. 2020); Ergon-West Virginia, Inc. v. EPA, 980 F.3d 403 (4th Cir. 2020). Frustrated by its repeated defeats in the regional circuits, and
after a 2021 change in presidential administration, EPA
began attempting to eliminate small-refinery hardship
relief altogether. EPA first abandoned defense of its own
prior decisions granting hardship relief and began newly
insisting that a small refinery cannot receive relief unless
it had received an exemption in every prior compliance
year. This Court rejected that new position in HollyFrontier. 594 U.S. at 396-397.
When that effort failed, EPA went back to the drawing
board intent on rejecting hardship relief and avoiding
judicial review anywhere other than the D.C. Circuit.
B. The present controversy
1. The small-refinery respondents here have repeatedly received RFS hardship relief from EPA in the past,
because each of them faces structural disadvantages that
make RFS compliance disproportionately burdensome.
The respondents petitioned EPA again for hardship relief
for some or all of the compliance years 2017 through 2021.
Pet.App.19a nn.26-27. EPA initially granted Wynnewood’s hardship petition for 2017, and it granted Calumet
Shreveport’s, Ergon Refining’s, Placid’s, and Wynnewood’s petitions for 2018. See EPA, Decision on 2018
Small Refinery Exemption Petitions (Aug. 9, 2019). 5
In December 2021, however, EPA reversed itself and
issued a proposal to deny every pending small-refinery
hardship petition, including by retroactively denying pre5
https://www.regulations.gov/comment/EPA-HQ-OAR-20210566-0077#collapseAttachmentMetadata-ember186 (Tab I).
15
viously granted petitions. 86 Fed. Reg. 70,999 (Dec. 14,
2021). EPA proposed to do so by applying multiple seachanges to the agency’s longstanding approach to hardship petitions. See Proposed Denials. 6 EPA also proposed,
however, to continue its existing practice of deciding hardship petitions through agency adjudication, because applying a new rulemaking process to hardship petitions
from prior years would have been unlawfully retroactive.
See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208209 (1988).
EPA’s proposed denials included a new statutory interpretation and a new “economic theory” hypothesizing
that “the RFS program cannot cause [disproportionate
economic hardship]” because RIN costs are supposedly
the same for all obligated parties regardless of their size,
bargaining power, location, or blending capability, and
because obligated parties supposedly universally pass
through 100% of their RIN costs in the price of the fuel
they sell. Proposed Denials 11-12 & n.37. Small refineries
commented on the proposal, explaining why EPA’s new
statutory position was textually unsupportable and why
their individual economic evidence refuted EPA’s hypothesis that small refineries universally pass on RIN costs.
E.g., JA 131-275.
In April 2022, in the first set of administrative actions
challenged here, EPA followed through on its proposal
and simultaneously denied 36 previously decided hardship petitions (31 of which EPA had previously granted),
including petitions submitted by these respondents.
Pet.App.189a-330a (the “April Denials”). EPA announced
it was satisfied that each of the petitioning small refineries
6
EPA, Proposed RFS Small Refinery Exemption Decision
(Dec. 2021), https://www.epa.gov/renewable-fuel-standardprogram/proposal-deny-petitions-small-refinery-exemptions.
16
was able to fully pass through its RIN costs in the price of
its fuel. Id. at 209a-212a. EPA issued each small refinery
a “confidential, refinery-specific appendi[x]” to the April
Denials’ explanation document, giving individualized reasons for its conclusion that each refinery could pass
through 100% of its RFS costs. Id. at 199a.
In June 2022, EPA largely copied and pasted its April
reasoning to announce the denial of another 69 hardship
petitions, including these small-refinery respondents’
petitions for some or all of the 2017 and 2019-2021 years.
Pet.App.44a-188a (the “June Denials”). The June Denials’
explanation document stated “that none of the 69 pending
[small-refinery hardship] petitions for the 2016-2021 compliance years ha[s] demonstrated [disproportionate economic hardship] caused by the cost of compliance with the
requirements of the RFS program.” Pet.App.185a. EPA
again provided separate “confidential, refinery-specific
appendices” explaining its findings on each small refinery’s RIN-cost passthrough. Pet.App.55a.
The refinery-specific appendices accompanying the
April and June Denials detailed EPA’s individualized
assessments of each small refinery’s economic condition.
For example, EPA considered whether one respondent
refinery could blend enough biodiesel given that it operates in a market that does not accept biodiesel blends, and
whether that refinery faced higher ethanol costs than
other large refiners and blenders in its area. JA 285-287.
EPA considered whether another respondent faced
higher transportation costs for shipping from terminals
along the Gulf Coast. JA 293-295. And EPA considered
the price impacts to another respondent from the fact
that, in its tri-State region, the small refinery faced diminished demand for kerosene-based jet fuel and morestringent specifications for ultra-low-sulfur diesel fuel. JA
17
312-313. It was based on individualized, refinery-specific
considerations like those—how each refinery fits in its
own local market—that EPA concluded that each of the
petitioning small refineries “is recovering its [RFS compliance] costs,” and for that reason is not experiencing disproportionate economic hardship. E.g., JA 280, 286, 298.
EPA accomplished its bundled denial decisions only
by ignoring the statutory deadline to decide the hardship
petitions; it held dozens beyond the 90-day deadline so
that it could deny them together and create the appearance of promulgating just two actions.
2. The small-refinery respondents filed petitions for
judicial review of EPA’s denials of their RFS hardship
petitions. Because the refineries each are headquartered,
incorporated, or operate within the Fifth Circuit, they
sought review there. Two groups representing the interests of the biofuel industry—the respondents in support
of petitioner here (“Biofuel respondents”)—intervened to
support EPA’s denials of hardship relief.
EPA moved to dismiss the petitions or transfer them
to the D.C. Circuit, asserting that because it had bundled
together its hardship-petition denial decisions, they were
“nationally applicable” or else “based on a determination
of nationwide scope or effect.” § 7607(b)(1).
The Fifth Circuit denied EPA’s motions. Pet.App.9a15a. EPA’s actions denying the small refineries’ hardship
petitions were “locally … applicable,” not “nationally
applicable,” because they affected only the individual
petitioning small refineries. Id. at 11a-12a. Nor were
EPA’s actions based on any nationwide determination. Id.
at 12a-13a. EPA conceded that it had “considered each
petition on the merits and individual refinery information.” Id. at 14a (cleaned up). And EPA’s explanation
documents confirm that the agency’s final actions—its
18
ultimate denials of the hardship-exemption petitions—
“re[lied] on refinery-specific determinations” about each
refinery’s own “economic hardship” factors. Id. at 15a.
On the merits of the small refineries’ challenges, the
Fifth Circuit explained at length why EPA’s hardshipdenial actions were “(1) impermissibly retroactive;
(2) contrary to law; and (3) counter to the record evidence.” Pet.App.3a; see id. at 16a-33a.
The Biofuel respondents filed petitions for rehearing
and rehearing en banc. Those were denied. Pet.App.332a333a.
3. Some other small refineries whose RFS hardship
petitions were denied as part of EPA’s April and June
Denials chose to petition for judicial review only in the
D.C. Circuit. And still other small refineries filed petitions
for review in the regional circuits but had their petitions
transferred to the D.C. Circuit—most without a substantive explanation or opinion. See U.S. Br. 13 & nn.2-3.
In July 2024, the D.C. Circuit unanimously agreed
with the Fifth Circuit’s “analysis and conclusion” on the
merits that EPA’s April and June Denials were “contrary
to law” and must be vacated. Sinclair Wyoming, 114
F.4th at 706-707 & n.5. The D.C. Circuit also held that the
denials were arbitrary and capricious because “reality
undercuts EPA’s” economic “theory” that small refineries
can universally pass on their RIN costs. Id. at 713.
19
SUMMARY OF ARGUMENT
A. The Fifth Circuit correctly held that EPA’s final
actions challenged here were locally applicable rather
than nationally applicable, and were based on respondents’ local economic circumstances rather than any determination of nationwide scope or effect.
1. Section 7607(b)(1)’s reference to the agency’s “final
action … under this chapter” indicates that it is the substantive CAA text that determines what final actions the
agency was authorized to take. Whether and how EPA
chooses to bundle its final actions is irrelevant to venue.
Here, every part of the relevant provision under the
“chapter”—especially the singular, definite articles and
the deadline for deciding hardship petitions indexed to
each petition’s submission date—indicates that Congress
directed EPA to produce individualized final actions on
individually submitted hardship petitions.
2. EPA’s individual denials of hardship relief were
obviously locally appliable rather than nationally applicable. The government does not argue otherwise. Those
decisions on individually submitted petitions affecting
only one refinery look nothing like the enumerated nationwide actions in Section 7607(b)(1)’s first sentence, but they
closely resemble the enumerated locally applicable actions in the second sentence.
3. “Determination” is a term of art in the CAA. An
EPA action is based on a determination of nationwide
scope or effect in the rare instance where the CAA’s text
directs EPA to make a “determination” about the entire
nation or industry, without the need to consider individual
circumstances. But here, the CAA required EPA to base
its hardship decisions on each petitioning small refinery’s
individual economic hardship factors. And EPA’s own documents confirm that the agency did just that.
20
B. The government’s arguments seeking D.C. Circuit
review fail.
1. The government goes astray because it gets the
relevant “action” wrong. EPA contends that its denials of
105 individually submitted hardship petitions were really
just two actions, asserting that a court may not contest
EPA’s “characterization” of its actions. But it is the text
of “th[e] chapter,” not EPA, that determines what final
actions the agency is authorized to take.
2. EPA’s argument for national applicability depends
on the Court accepting the agency’s view of the relevant
unit of administrative action. Even if EPA were correct
that the bundled decision announcements were the relevant actions, those still were not nationally applicable
because they applied only to those refineries that chose to
petition for hardship relief, not to the whole nation. EPA
asserts that any agency action that touches more than one
judicial circuit is nationally applicable. But that argument
produces the absurd result that an expressly regional
action for a metropolitan region that happens to encompass two States (and two circuits) would be “nationally applicable” and reviewable only by the D.C. Circuit.
3. Contrary to EPA’s assertion, the hardship denial
actions were not based on any determination of nationwide scope or effect.
The relevant text of the “chapter” here, unlike other
closely related provisions, does not call for any “determination” on a small-refinery hardship petition. EPA’s argument depends on treating “determination” not as a term
of art but as an amorphous concept of anything that contributed significantly to an EPA action.
In any event, neither EPA’s new interpretation of the
Act, nor its new RIN-cost-passthrough economic hypothesis, were “nationwide determinations” that formed the
21
“bas[is]” for EPA’s hardship denial decisions. Every EPA
action necessarily rests to some degree on the agency’s
understanding of its statutory authority. And EPA is
required to apply a “uniform” statutory interpretation to
similarly situated small-refinery petitioners—anything
else would have been arbitrary. Moreover, EPA’s new
statutory reading could not be the basis for final actions
on respondents’ hardship petitions; EPA expressly did
not use a rulemaking here. EPA achieved final actions
only by applying its statutory interpretation to respondents’ individual economic facts.
For the same reason, even if EPA’s economic theory
could qualify as a “determination” under the CAA, the
final actions denying respondents’ hardship petitions
were not “based on” it. Moving beyond hypothesis to final
actions required EPA to test its prediction against respondents’ economic evidence. And EPA acknowledges on
the face of the denial decisions that it did so.
EPA’s decisions here do not resemble the unusual
CAA provision that was the genesis for the nationwidedetermination exception sentence in Section 7607(b)(1).
EPA’s appeals to policy cannot overcome the statutory
text. And in any event, EPA’s attempt to force dozens of
small refineries to litigate their RFS hardship-denial
decisions together in the D.C. Circuit has served only to
obscure judicial consideration of the individual economic
factors that the CAA makes the core basis for hardship
relief.
22
ARGUMENT
Section 7607(b)(1) sets the venue for a petition for
review principally by asking whether the EPA “final
action” being challenged is nationally applicable or
locally/regionally applicable. Courts identify the relevant
“final action” by examining the substantive text of “th[e]
chapter”—the CAA. Here the chapter designates the final
actions as EPA’s denials of small refineries’ individually
submitted RFS hardship petitions. The statutory text
calls for individualized consideration of each petitioning
small refinery’s “disproportionate economic hardship.”
§ 7545(o)(9)(B).
Once EPA’s individual denial decisions are properly
identified as the “final action[s]” under challenge, their
national vs. local applicability is obvious: Those individual
denials are, as EPA has always said, “quintessentially
local action[s]” for Section 7607(b)(1) because they “adjudicate[ ] legal rights as to a single refinery in a single location.” EPA Motion 18, Advanced Biofuels, No. 18-1115,
supra. The face of the actions here confirms that EPA
reached final decisions only by examining refinery-specific
evidence and reaching refinery-specific conclusions that
none of these respondents experiences disproportionate
economic hardship from the RFS. Indeed, the statutory
text compelled EPA to deny hardship relief based on the
petitioning small refineries’ own economic circumstances—not any nationwide determination. So the Fifth
Circuit correctly held that it was the proper venue rather
than the D.C. Circuit.
The government contends (U.S. Br. 28-29) that these
hardship-petition denial actions are nationally applicable—unlike all prior hardship decisions—because EPA
has “characteriz[ed]” them differently. EPA conceives of
its decisions denying 105 separately submitted hardship
23
petitions as just two national actions because it chose to
announce those denials together. But EPA does not
decide what the relevant “final action” is under the CAA—
the statute does. The substantive CAA provision at issue
designates each individual hardship decision as the relevant unit of administrative action, none of which applies in
more than one circuit. EPA’s suggestions that any action
happening to touch more than one circuit is “nationally
applicable,” and that it can manufacture nationally applicable actions by bundling individual decisions together,
are inconsistent with the CAA’s text, context, and history,
as well as common sense.
Alternatively, EPA claims that these hardship decisions are locally applicable but based on a new statutory
interpretation and economic theory that have nationwide
scope or effect. Wrong, both times. EPA’s musings about
its statutory instructions, and its generalized economic
hypothesis about small refineries’ RIN costs, were merely
steps along the way of EPA’s individual-refinery decisionmaking process. Neither was a “determination”—
a term of art in the CAA—called for by the text. And neither produced any final agency action. EPA’s final actions
were instead expressly based on its conclusions about
each petitioning small refinery’s economic circumstances.
EPA itself says it denied respondents’ hardship petitions
based on its (erroneous) view that each refinery “is recovering its [RFS compliance] costs.” E.g., JA 280, 286, 298
(emphasis added).
Under the venue instructions in Section 7607(b)(1),
review of these hardship-petition actions belongs in the
regional circuit courts—exactly where prior actions on
similar petitions have long been reviewed. The Fifth Circuit’s judgment should be affirmed.
24
A. The Fifth Circuit’s decision was correct.
Identifying the proper venue for judicial review under
Section 7607(b)(1) involves three questions: (1) What
“final action” did EPA take “under” the CAA? (2) Was
that final action locally or regionally applicable, as opposed
to nationally applicable? (3) If so, was the action nevertheless “based on a determination of nationwide scope or
effect”? The Fifth Circuit answered each of those questions correctly.
1. The “final action[s]” are EPA’s denials of each
small-refinery’s hardship petition.
a. The parties and the courts of appeals agree that
“Section 7607(b)(1) categorizes petitions for [judicial]
review according to the nature of the [EPA] action” being
challenged. Texas 2016, 829 F.3d at 419; accord U.S. Br.
20 (citing additional cases). But a court cannot assess an
action’s nature until it identifies “what ‘final action’ [it is]
dealing with.” Kentucky v. EPA, Nos. 23-3216/23-3225,
2023 WL 11871967, at *2 (6th Cir. July 25, 2023).
The statute helpfully describes how to answer that
question: refer to the “final action of [EPA] under this
chapter.” § 7607(b)(1) (emphasis added). “[T]his chapter”
is the CAA. See p. 6, supra. Section 7607(b)(1)’s phrase
“final action … under this chapter” points the reader to
the substantive CAA provision that provides “the legal
source of the agency’s … authority to take the challenged
actions.” Texas 2023, 2023 WL 7204840, at *4; see p. 10,
supra (additional cases making the same point).
Section 7607(b)(1)’s overall structure makes this even
more clear. By enumerating specific CAA sections authorizing national or local/regional actions in the first two sentences, and then adding a catchall clause to each sentence
for “any other” nationally or locally/regionally applicable
action, the venue provision repeatedly requires cross ref-
25
erencing the CAA provision that authorized the EPA
action under challenge. See Kentucky, 123 F.4th at 461
(Section 7607(b)(1) “focuses on the statute … to distinguish” national vs. local/regional actions).
b. The “final action” that the CAA authorized here is
for EPA to “act on” a small refinery’s individually submitted RFS hardship petition. § 7545(o)(9)(B); see Pet.App.
185a (EPA invoking § 7545(o)(9)(B) as its source of authority). So that is the “relevant unit of administrative action”
for venue purposes. Texas 2023, 2023 WL 7204840, at *4.
Everything about that substantive text demonstrates
that EPA’s final actions on hardship petitions are to be
individualized. Every reference in that subsection to the
“petition” or the petitioning “refinery” is in the singular:
“A small refinery may at any time petition” EPA for a
hardship exemption, based on the “reason of disproportionate economic hardship” if required to comply with the
RFS. § 7545(o)(9)(B)(i) (emphasis added). EPA must
“evaluat[e] a petition,” considering the findings of the
2011 DOE small-refinery study and other economic factors. § 7545(o)(9)(B)(ii) (emphasis added). Whether a particular petitioning small refinery is experiencing disproportionate economic hardship from the RFS in a given
year is necessarily an individualized inquiry focused on
that refinery’s own economic circumstances.
Congress also provided that the statutory deadline for
EPA to “act on any [small-refinery hardship] petition” is
indexed to each petition: “not later than 90 days after the
date of receipt of the petition.” § 7545(o)(9)(B)(iii). That
provision forcefully confirms that Congress directed EPA
to produce individualized actions on hardship petitions;
the rolling, refinery-specific deadlines would make no
sense otherwise. Cf. Kentucky, 123 F.4th at 461 (EPA’s
obligation “to ‘act’ on each State’s ‘submission’ on a plan-
26
by-plan basis within a specified time” indicates those
actions are locally rather than nationally applicable) (citation omitted). And as mentioned above (p. 17, supra), EPA
was able to produce bundled hardship decisions only by
deliberately ignoring the CAA’s decision deadline.
The broader statutory context also shows that Congress did not intend its “singular” definite and indefinite
articles in this subsection to “include and apply to several
persons, parties, or things.” Contra U.S. Br. 26 (quoting
1 U.S.C. § 1). Congress initially granted a blanket exemption from the RFS through 2011 to all “small refineries”—
plural. § 7545(o)(9)(A)(i). Congress then directed EPA to
extend that exemption for another two years on an individualized basis to only “a” small refinery that DOE
determined would face disproportionate economic hardship from the RFS. § 7545(o)(9)(A)(ii)(II). After that, Congress transitioned to the current petition-based approach.
§ 7545(o)(9)(B). The statute now puts the onus on each
small refinery to request hardship relief based on its own
“disproportionate economic hardship.” § 7545(o)(9)(B)(i).
Congress knew how to authorize blanket or multiple
exemption actions, but it did not do so here. Congress
instead directed EPA to “act on” “the petition” “submitted by a small refinery.” § 7545(o)(9)(B)(iii) (emphases
added).
c. Federal courts’ practice also reflects the reality
that EPA’s individual hardship-exemption decisions are
the final actions for venue purposes. When the Fifth Circuit below held that EPA’s denial decisions were unlawful,
it did not vacate all 105 EPA denial decisions, despite the
government’s urging that it had produced just two national actions. Instead, the Fifth Circuit properly vacated
only the denial decisions for the small refineries before it.
Pet.App.34a.
27
In another recent case involving subsequent smallrefinery hardship decisions that EPA bundled together,
the government moved the D.C. Circuit to act separately
on the denial decisions for particular refineries—to vacate
some final actions in EPA’s bundle but not others. See
Calumet Montana Refin., LLC v. EPA, No. 23-1194, Dkt.
2081226 (Oct. 21, 2024); see id., Dkt. 2091139 (Dec. 23,
2024) (D.C. Circuit granting limited vacatur in accord with
EPA’s request). That motion confirms EPA’s agreement
that, even when it bundles small-refinery hardship decisions together, courts review the individual final actions
that apply to each refinery. And EPA would surely take
the position that each denied refinery must file a petition
for review to obtain judicial review at all.
*
The relevant “final action[s]” for venue purposes are
thus EPA’s decisions on each small refinery’s hardship
petition, regardless of EPA’s choice to bundle its petition
decisions. Accord Kentucky, 123 F.4th at 460-463 (rejecting EPA’s argument that its consolidated disapprovals of
21 state implementation plans constituted a single action).
Once the action is properly identified, it “makes this case
easy.” Id. at 461. EPA’s individual denial decisions are
obviously locally/regionally applicable—the government
doesn’t try to argue otherwise. And those decisions did
not involve any nationwide “determination” called for by
the CAA. Rather, each was based (as they must be per the
Act) on EPA’s refinery-specific evaluations of each petitioning small refinery’s own economic hardship factors—
things like local-market acceptance of renewable fuel,
percentage of diesel production, access to capital, etc. See,
e.g., JA 280, 285-287, 293-298.
28
2. EPA’s denials of the hardship petitions are “locally
or regionally applicable” actions.
a. The venue provision’s “applicability” inquiry—
nationally vs. locally/regionally applicable—asks about
“the location of the persons or enterprises that the action
regulates.” Texas v. EPA, No. 10-60961, 2011 WL 710598,
at *3 (5th Cir. Feb. 24, 2011) (quoting New York v. EPA,
133 F.3d 987, 990 (7th Cir. 1998)). Multiple courts of
appeals have agreed, at the government’s urging, that
what matters is “the face of ” the action, American Road,
705 F.3d at 456 (Kavanaugh, J.), not the action’s reasoning
or practical “effects,” ATK Launch, 651 F.3d at 1197.
Accord U.S. Br. 20-21 (citing additional cases). 7
The “ ‘ordinary meaning’ ” of the “key words” in Section 7607(b)(1)’s first sentence—“ ‘nationally applicable
regulations promulgated, or final action taken’ by the
EPA”—“convey[s] that the challenged regulations or
action must apply to the entire country.” Kentucky, 123
F.4th at 459 (emphasis added; citations omitted). The
Sixth Circuit’s Kentucky opinion gives the relevant dictionary definitions, see ibid., though it’s “doubt[ful] that
we need dictionaries for this point,” ibid. The word “nationally” refers to an EPA action affecting the “nation as
a whole.” Ibid. (citation omitted).
Two different canons of construction confirm that
interpretation. The first is ejusdem generis. See Kentucky, 123 F.4th at 460. Because the phrase “nationally
applicable” comes in a catchall clause following an enumerated list of national CAA actions, courts determine
7
Biofuel respondents’ alternative theory (Br. 21)—that the
key to venue is what arguments might be raised in a petition
for review challenging the agency action—has been repeatedly
rejected. It is contrary to the textual instruction to look to the
“final action … under this chapter.” § 7607(b)(1).
29
the meaning of “nationally applicable” by reference to the
enumerated actions. Ibid. (citing Bissonnette v. LePage
Bakeries Park St., LLC, 601 U.S. 246, 252 (2024)). And the
first sentence’s enumerated CAA actions all “have nationwide applicability,” ibid.: They regulate across the whole
nation without individualized consideration, and they
apply irrespective of whether any party requested agency
action or not. By contrast, the enumerated locally applicable actions in Section 7607(b)(1) involve individual regulated entities or States. Finding a “nationally applicable”
action for purposes of the catchall clause thus requires
identifying an EPA final action that similarly affects the
entire nation, irrespective of a party’s local circumstances.
Second, “courts presume that Congress means to
adopt ‘clear boundaries’ in ‘jurisdictional statutes’ to avoid
wasteful litigation over the proper forum.” Kentucky, 123
F.4th at 460 (quoting Direct Mktg. Ass’n v. Brohl, 575
U.S. 1, 11 (2015), and citing other cases). The courts of
appeals have agreed that Section 7607(b)(1) is a venue
provision rather than a jurisdictional one. 8 But the basic
point is the same: No one’s interests are served by complex disputes over venue. Clear boundaries are set by giving “nationally applicable” its ordinary meaning: An EPA
final action is “nationally applicable” for purposes of
Section 7607(b)(1) when it governs the entire nation, as
opposed to when it governs some lesser subset of regulated parties, States, or regions.
b. In the context of the RFS program, the CAA
authorizes EPA to take some national actions and some
local actions. For example: When EPA publishes annual
8
See Texas 2016, 829 F.3d at 418; Dalton Trucking, Inc. v.
EPA, 808 F.3d 875, 879 (D.C. Cir. 2015); Clean Water Action
Council of Ne. Wis., Inc. v. EPA, 765 F.3d 749, 751 (7th Cir.
2014).
30
renewable-fuel blending-volume obligations for the industry, that is a nationally applicable action, and any challenge to it goes to the D.C. Circuit. See, e.g., Americans
for Clean Energy v. EPA, 864 F.3d 691 (D.C. Cir. 2017).
That’s because EPA’s volumes rule affects every RFSobligated party in the nation.
But when EPA decides a small refinery’s RFS hardship petition, that is a “quintessentially local action,” as
EPA itself has previously (correctly) put it. EPA Motion
18, Advanced Biofuels, No. 18-1115, supra. Hardship
decisions look nothing like the national actions enumerated in Section 7607(b)(1)’s first sentence, but they closely
resemble the individualized decisions enumerated in the
second sentence. Hardship decisions do not regulate the
whole nation or industry; they “involve only the regulation
of ” individual facilities’ requests for relief and “have legal
consequences only for [those] facilities.” Texas 2023, 2023
WL 7204840, at *5; see West Virginia Chamber of Commerce v. Browner, 166 F.3d 336 (4th Cir. 1998) (finding it
“clearly regionally applicable” “when the EPA … makes
a determination with respect to a particular facility”).
As EPA has previously explained: Each of the smallrefinery respondents’ hardship petitions “only requested
relief for one refinery.” EPA Reply in Support of Motion
to Dismiss 2, Lion Oil Co. v. EPA, No. 14-3405, Dkt.
4227218 (8th Cir. Dec. 17, 2014). And each denial action
was a “decision with respect to a particular small refinery’s request” that “adjudicates legal rights as to that single refinery in its single location.” U.S. Br. 15, Producers
of Renewables United for Integrity Truth and Transparency v. EPA (“PRUITT”), No. 18-1202, Dkt. 1775897
(D.C. Cir. Mar. 4, 2019).
That is why EPA has repeatedly argued that RFS
hardship decisions are locally applicable for Section
31
7607(b)(1), before EPA began attempting to manufacture
venue in the D.C. Circuit by bundling decisions together.
E.g., PRUITT, No. 18-1202, supra; EPA Response 2,
Renewable Fuels Ass’n v. EPA, No. 18-9533, Dkt. 35 (10th
Cir. July 12, 2018) (“venue is proper in this Court”); U.S.
Br. 2-3, Ergon-West Virginia, Inc. v. EPA, Nos. 19-2128,
19-2148, 19-2152 (consol.), Dkt. 64 (4th Cir. May 28, 2020)
(challenge to denied hardship petition “properly venued”
in Fourth Circuit “because the action is locally or regionally applicable”).
3. EPA’s actions were based on local economic facts,
not any nationwide statutory determination.
a. Because EPA’s denials of respondents’ RFS hardship petitions are “locally or regionally applicable action[s],” the text of Section 7607(b)(1)’s third sentence
presumptively “requires review in th[e] [regional] circuit.” Texas 2016, 829 F.3d at 424; see Kentucky, 2023 WL
11871967, at *3. EPA can overcome that presumption only
by demonstrating that its denials were “based on a determination of nationwide scope or effect.” § 7607(b)(1); see
pp. 8-10, supra.
The courts of appeals broadly agree that the scope and
effect of EPA’s determinations are reviewed “de novo”
and without deference to the agency. Texas 2016, 829 F.3d
at 421 (5th Cir.); see Sierra Club, 47 F.4th at 746 (D.C.
Cir.); Dalton Trucking, Inc. v. EPA, 808 F.3d 875, 881
(D.C. Cir. 2015). The third-sentence exception applies
only “if [the] action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based
on such a determination.” § 7607(b)(1) (emphases added).
It does not suffice for EPA to find and publish a nationwide-effect conclusion; the action must actually be based
on a determination of nationwide scope or effect and EPA
32
must publish that finding. The first of those independent
“two conditions” (unlike the second) makes no reference
to what EPA finds or publishes, so it is a legal question for
the courts. Texas 2016, 829 F.3d at 421; see Sierra Club,
47 F.4th at 746; see also Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
Both the text and history of Section 7607(b)(1)’s third
sentence show that, to trigger the exception, the relevant
substantive CAA provision must textually direct EPA to
make a “determination” for the entire nation—i.e., the
kind of determination that does not depend on individual
circumstances. See pp. 8-9, supra. That was the kind of
statutory determination identified by EPA General Counsel Frick that the government agrees (U.S. Br. 18)
prompted Congress to add the third sentence to Section
7607(b)(1). And the government further agrees (U.S. Br.
31) that Section 7607(b)(1)’s “based on” formulation means
the relevant EPA determination cannot be “peripheral or
extraneous” but must “lie at the core of the agency
action.” Texas 2016, 829 F.3d at 419.
The CAA is littered with provisions requiring “determinations” as the basis for final actions. In fact, more than
half of the CAA’s sections call for at least one determination before EPA can act. See generally 42 U.S.C. Ch. 85.
Congress’s repeated use of the term “determination” or
its derivatives throughout the Act indicates it is a term of
art with the same meaning in Section 7607(b)(1). See
Mohamad v. Palestinian Auth., 566 U.S. 449, 456 (2012).
So courts do not apply Section 7607(b)(1)’s third sentence
by asking generally about the inputs or processes for an
EPA action; they look to whether the statutory text called
for taking that action on the basis of a specific kind of
determination. See Kentucky, 123 F.4th at 463-464 (“When
used to describe a ruling from an ‘administrative agency,’
33
‘determination’ has a more precise ‘legal meaning’ ” that
does “not” refer to “each preliminary step on the road to
[the agency’s] decision.”) (citation omitted).
b. EPA’s denials of the small-refinery respondents’
hardship petitions were not based on any statutory determinations of nationwide scope or effect.
i. That is so, first, because the relevant CAA provision here (§ 7545(o)(9)(B)) does not call for any determination at all. Unlike the immediately preceding subsection
and other subsections within the same section, subsection
7545(o)(9)(B) does not use the phrase “determination” or
“determines.” It instead invites a small refinery to petition for relief “for the reason of disproportionate economic
hardship,” and it says that EPA should “evaluat[e]” that
hardship petition in consultation with DOE after considering DOE’s 2011 study and “other economic factors.”
There are no statutory “determination[s]” in that process.
To the extent Section 7545(o)(9)(B) contemplates any
statutory determination at all, it calls for a determination
that has a local scope and effect. After the blanket RFS
exemption for small refineries ended in 2011, Congress
directed EPA to extend an exemption for at least two
more years “[i]n the case of a small refinery that the Secretary of Energy determines … would be subject to a disproportionate economic hardship if required to comply
with” the RFS. § 7545(o)(9)(A)(ii)(II) (emphases added).
No longer did all small refineries nationwide get the
exemption; only those specific small refineries that were
determined to face disproportionate economic hardship.
That provision required EPA to grant exemptions based
on DOE’s local determination that a particular small
refinery would face hardship.
34
Congress then provided in the very next subsection—
the one at issue here—that “[a] small refinery may at any
time petition [EPA] for an extension of the exemption
under subparagraph (A) for the reason of disproportionate economic hardship.” § 7545(o)(9)(B)(i). The reference
back to “subparagraph (A)” indicates that, when EPA
considers a small refinery’s hardship petition, it must
make the same individualized hardship determinations
that drove the earlier regime.
The plain text of “th[e] chapter” thus compels EPA’s
hardship decisions to be “based on” an economic analysis
for “a” petitioning small refinery that is local in scope and
effect. § 7607(b)(1); § 7545(o)(9)(B)(i). EPA has said the
same thing: the Act “give[s] EPA the authority to grant
[a hardship] petition only when a small refinery demonstrates it is experiencing [hardship] caused by compliance
with the RFS program.” Pet.App.185a. That must be the
core basis for any final action on a hardship petition.
ii. Moreover, the record here shows that EPA in fact
based its final actions denying hardship relief on just such
individualized conclusions. EPA explained that it had
“completed a thorough evaluation of the data and information provided in the [hardship] petitions, supplemental
submissions, and comments to determine if any of the
petitioners have demonstrated that the cost of compliance
with the RFS is the cause of their alleged [hardship].”
Pet.App.94a-95a. EPA then found “that none of the”
pending petitions had “demonstrated [hardship] caused
by the cost of compliance with the requirements of the
RFS program.” Pet.App.185a; accord U.S. Br. 10 (“EPA
determined that none of the petitioning small refineries
had rebutted [the RIN-cost-passthrough] presumption
through evidence about their specific circumstances.”).
35
To be sure, EPA had hypothesized in the proposed
denials, before its final actions, that no small refinery
would suffer hardship from the RFS because each could
fully pass through its RIN costs. But that was merely a
hypothesis. EPA called it then an “economic theory,”
Pet.App.212a n.42, 251a; and calls it now (U.S. Br. 8) a “rebuttable presumption.” Whatever it’s called, for EPA to
test its hypothesis—to move beyond theory and produce
final agency action on the hardship petitions—EPA concedes that it needed to, and did, “carefully review[ ] data,
[fuel-sales] contracts, and other information from small
refineries.” Pet.App.98a-99a. It was only then that EPA
concluded (erroneously) that each small refinery actually
“is recovering its [RFS compliance] costs,” e.g., JA 280,
286, 298, and for that reason does not face economic hardship, Pet.App.100a.
*
Both the statutory text and record confirm that EPA
took these final actions “based on” conclusions that none
of the small-refinery respondents would experience
disproportionate economic hardship from the RFS.
§ 7607(b)(1). Even if those conclusions could qualify as
“determinations” at all, they were local determinations
based on an analysis of each refinery’s local evidence, not
any “determination of nationwide scope or effect.” Ibid.
B. EPA’s arguments seeking D.C. Circuit review fail.
Despite EPA’s longtime position that its final actions
on hardship petitions are reviewable only in the regional
circuit courts, EPA now argues that these denial decisions
were nationally applicable, or else were based on a determination of nationwide scope or effect. EPA is wrong on
both points.
36
1. EPA gets the “action” wrong.
EPA does not attempt to argue that its individual
hardship-petition decisions—as opposed to its bundled
explanations in the April and June Denials of its reasons
for denying those petitions—were nationally applicable.
EPA’s argument thus hangs on this Court being willing to
credit its assertion that it produced just two final actions.
But the statute shows EPA is wrong about that. It is the
chapter’s text, not EPA, that establishes what qualifies as
the relevant “action” “under” the CAA. Texas 2023, 2023
WL 7204840, at *4.
a. EPA’s brief offers no real attempt to analyze the
first critical phrase in Section 7607(b)(1): “final action …
under this chapter.” The government says (U.S. Br. 2829) all that matters is “EPA’s characterization of its own
agency action” and that courts may not “second-guess
EPA’s own framing.” But all agree it is the nature of the
administrative action that matters for venue. See pp. 2223, supra. And nothing in the statute gives EPA the power
to alter the nature of administrative actions just by choosing how to publish those actions (grouped together vs.
individual announcements). EPA’s argument calls back to
an era before this Court held squarely that “courts, not
agencies,” determine “the meaning of statutory provisions.” Loper Bright, 603 U.S. at 392, 394.
The Sixth Circuit recently explained why it rejected
the same argument advanced by the government here:
that EPA’s choice of framing, rather than the statutory
text, controls what counts as the final action. See Kentucky, 123 F.4th at 460-463. “The ‘structure’ of the judicialreview provision … focuses on the statute”—not on how
EPA chose to report its decisions—“to distinguish the
EPA actions that parties must challenge in the D.C. Circuit from those they must challenge in regional circuits.”
37
Id. at 461 (quoting Engine Mfrs. Ass’n v. South Coast Air
Quality Mgmt. Dist., 541 U.S. 246, 252 (2004)). Congress’s
own designation in Section 7607(b)(1)’s first two sentences of enumerated actions as either nationally applicable or locally applicable, combined with catchall phrases
for each sentence, indicates it is the Act, not EPA, that
gives an action its nature. See ibid.
EPA’s invocation (U.S. Br. 28) of “the face of the final
action” does not advance the analysis. “Th[at] argument
conflates the [explanation] issued” for EPA’s hardshipdenial decisions “with the ‘final action’ that the EPA
takes.” Kentucky, 123 F.4th at 462 (quoting § 7607(b)(1)).
Small-refinery respondents’ position does not depend on
the contents of any petitioner’s court challenge to the
EPA action or on downstream effects. Venue depends,
instead, on whether the text of the chapter shows the challenged action on its face to be more like Section
7607(b)(1)’s enumerated nationally applicable actions
(governing the whole nation) or more like the enumerated
locally applicable actions that resolve individual parties’
rights or obligations.
b. None of that calls into question EPA’s “free[dom]
to fashion [its] own rules of procedure,” including
“ ‘whether applications should be heard contemporaneously or successively.’ ” U.S. Br. 26-27 (quoting FCC v.
Pottsville Broad. Co., 309 U.S. 134, 138 (1940)). That freedom includes the “process” for taking action; for example,
the freedom (where the law permits) to choose between
“rulemaking, individual adjudication, or a combination of
the two.” NAACP v. Federal Power Comm’n, 425 U.S.
662, 668 (1976). EPA could have conducted a rulemaking
to establish a new interpretation of Section 7545(o)(9)(B)
and new adjudicatory framework, and such a rule would
likely have been nationally applicable. But a new rule like
38
that would have needed to be prospective only, see p. 15,
supra, which did not meet EPA’s goal here to issue longoverdue decisions denying previously submitted smallrefinery hardship petitions from prior years.
Respondents’ position thus does not disturb EPA’s
choice whether to proceed by rulemaking versus adjudication. EPA will retain flexibility in running its future
hardship decisionmaking processes, so long as it examines
each small refinery’s evidence and adheres to the statutory decision deadline for final action on each petition.
What EPA may not do is what it attempted here: disregard whether the CAA’s text calls for local rather than
national action. Contrary to EPA’s assertion (U.S. Br.
26-27), respondents’ textual analysis does not rely merely
on “an indefinite article.” As described above (pp. 24-27,
supra), every relevant part of the text and structure of
Section 7545(o)(9) confirms that Congress wanted RFS
hardship decisions to be individualized. Cf. Kentucky, 123
F.4th at 461 (“the disapproval of each state plan qualifies
as a distinct ‘action’ ”).
2. EPA fails to establish that the hardship decisions
are nationally applicable.
With EPA’s misidentification of the relevant final
action corrected, the errors in its remaining arguments
become clear. EPA’s April and June 2022 explanation documents asserted that the agency had taken nationally
applicable actions for two reasons. First, EPA announced
together the denial of hardship petitions submitted by
refineries located in different circuits. Pet.App.185a-188a
(June 2022 announcement: “This final action denies 69
petitions … for over 30 small refineries across the country[.]”); Pet.App.327a-330a (similar for April 2022 announcement). Second, EPA applied its new statutory
interpretation and new economic passthrough hypothesis
39
to all hardship petitions that the agency adjudicated. E.g.,
Pet.App.187a-188a (“EPA’s revised interpretation of the
relevant CAA provisions and the RIN discount and RIN
cost passthrough principles … are applicable to all small
refineries.”).
a. Although EPA defended the second venue argument in its certiorari petition, U.S. Pet. 10 (arguing that
the Denials “are ‘nationally applicable’ because they apply
a uniform methodology to small refineries”), it has now
abandoned it, making only the geographic argument here.
U.S. Br. 19-24. Rightly so. Looking to the legal standard
or reasoning applied would contradict EPA’s long-held
position—accepted by multiple courts of appeals—that
only “the face” of the challenged action matters for venue,
not the action’s reasoning or effects. See p. 28, supra. 9
b. EPA’s argument that the actions here were nationally applicable because of geography rests on two erroneous premises. First, as discussed just above in Part B.1, it
wrongly assumes the relevant “actions” are the two documents explaining EPA’s reasons for denying 105 individually submitted hardship petitions. “[T]hrow[ing] a
blanket labeled ‘national’ over [105] individual decisions”
does not “convert” them “into … national one[s].” West
Virginia, 90 F.4th at 330. That is especially so when EPA
9
Biofuel respondents’ argument (at Br. 36) that “smallrefinery exemption decisions” are “inherently nationally applicable” because they affect “the amount of renewable fuel that
obligated parties must inject into the nation’s transportationfuel supply” fails for the same reason. The “applicability” inquiry is unconcerned with the “practical effects” of the EPA
action. American Road, 705 F.3d at 456 (Kavanaugh, J.). Especially a downstream issue like whether EPA chooses to adjust
volume obligations for other parties based on outcomes of small
refineries’ hardship petitions.
40
was able to get all of these individual decisions under its
purportedly “national” blanket only by refusing to follow
the CAA’s 90-day deadline for answering the hardship
petitions. § 7545(o)(9)(B)(iii). Courts generally “will not
suffer a party to profit by his own wrongdoing.” United
States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996). And
the government “should turn square corners in dealing
with the people.” Department of Homeland Sec. v.
Regents of the Univ. of California, 591 U.S. 1, 24 (2020)
(internal quotation marks and citation omitted).
Second, EPA now reads the statutory phrase “the
appropriate circuit” to mean that “any action that spans
more than one judicial circuit is properly viewed as ‘nationally applicable’ and subject to review only in the D.C.
Circuit.” U.S. Br. 21-22 (quoting § 7607(b)(1)). According
to the government (U.S. Br. 21), “[t]he statute’s use of the
definite article … indicates that, for any given locally or
regionally applicable EPA action, there is only one appropriate regional court of appeals in which to seek review.”
That reading is incorrect.
Nothing in Section 7607(b)(1) indicates that the phrase
“the appropriate circuit” informs the meaning of “nationally applicable,” and the plain meaning of “nationally
applicable” contradicts EPA’s reading. “Nationally”
means “with regard to the nation as a whole.” Nationally,
THE OXFORD ENGLISH DICTIONARY (1971); see Kentucky, 123 F.4th at 459 (same). Yet on EPA’s reading, an
action applying to far less than the whole nation—say, one
applying only to Mississippi and Alabama—would be
“nationally applicable.” That is a stretch, to say the least.
Even accepting arguendo EPA’s view of the relevant
final action, the April and June 2022 Denials were not “nationally applicable” because they did not cover the whole
nation like the enumerated actions in Section 7607(b)(1)’s
41
first sentence do. They applied to (and bound) only those
small refineries that petitioned for an exemption. See
Pet.App.11a-12a.
The ordinary meaning of “regionally applicable” also
rebuts EPA’s proffered reading, because that term contemplates agency actions applying in multiple places
within a region: “of or pertaining to, or connected with, a
particular region.” Regional, THE OXFORD ENGLISH
DICTIONARY (1971). Indeed, EPA’s attempt to put so
much weight on a single definite article produces textually
absurd results. Consider EPA’s 250 air quality control
regions, some of which cover large metropolitan areas
that happen to cross State (and circuit) lines.10 “Metropolitan St. Louis” (Region 70) and “Metropolitan Kansas City”
(Region 90) are two examples. Can there be any doubt
that an EPA disapproval of a regional implementation
plan for only Region 90 (Metropolitan Kansas City) is a
“regionally applicable” action for purposes of Section
7607(b)(1), even though that action touches both the
Eighth and Tenth Circuits?
Congress did not think so. The 1970 Senate Report
invoked by the government (U.S. Br. 23) said that “implementation plans which run only to one air quality control
region” should be reviewed in the circuit court “in which
the affected air quality control region, or portion thereof,
is located.” S. Rep. No. 1196, 91st Cong., 2d Sess. 41 (1970)
(emphasis added). Yet according to the government (U.S.
Br. 22), the circuit courts governing the States affected by
a Kansas City regional action are powerless because “any
action that spans more than one judicial circuit” must go
exclusively to the D.C. Circuit.
10
See
https://aqs.epa.gov/aqsweb/documents/codetables/aqcrs.html.
42
The Senate Report supports what ordinary usage suggests about the meaning of “the appropriate circuit.”
§ 7607(b)(1) (emphasis added). The use of “the appropriate circuit” rather than “the appropriate circuit(s)” reflects merely that Congress often doesn’t legislate with
laser-like precision. E.g., United States v. Bass, 404 U.S.
336, 344 (1971) (“we cannot pretend that all statutes are
model statutes”). For most EPA final actions (properly
identified), it will be readily apparent whether the action
applies to the whole nation or to some subset—and in the
latter instance, which circuit court is “appropriate.” That
is certainly true for EPA’s RFS hardship decisions, which
affect only individual small refineries.
c. Taken together, EPA’s arguments reveal the
agency’s conscious desire for the power to choose where
its actions are reviewed. EPA says (U.S. Br. 28-29) that
“action … under this chapter” means its own “characterization” of an action, which courts cannot “second-guess.”
And EPA further says (U.S. Br. 22) that any time an
action affects states or parties in more than one circuit, it
is automatically entitled to D.C. Circuit review. If EPA
were right about both, then the agency could nearly always manufacture venue in the D.C. Circuit. EPA could
simply mush together two small refineries’ RFS hardship
decisions, or decisions on two States’ implementation
plans—even two decisions that have nothing to do with
each other—and thereby deny the regulated parties the
opportunity for review by a regional circuit court.
The text of Section 7607(b)(1) does not allow that
manipulation. “[V]enue provisions in Acts of Congress
should not be so freely construed as to give the Government the choice of ‘a tribunal favorable’ to it.” Travis v.
United States, 364 U.S. 631, 634 (1961) (citation omitted).
43
3. The hardship decisions were not based on a
determination of nationwide scope or effect.
EPA asserts (U.S. Br. 33-35) that its individual denial
decisions were based on two determinations of nationwide
scope or effect: “EPA’s revised interpretation of the relevant CAA provisions and the RIN discount and RIN cost
passthrough principles.” Pet.App.187a-188a. That mischaracterizes both the statutory text and the final actions.
a. As an initial matter, neither EPA’s statutory interpretation nor its economic hypothesis was a statutory
“determination” as the CAA uses that term of art. See pp.
32-34, supra. Neither describes any issue that the CAA’s
text directed EPA to “determine” before acting on a small
refinery’s RFS hardship petition. See § 7545(o)(9).
In the immediately preceding subsection, Congress
instructed EPA to extend two-year hardship exemptions
based on DOE’s “determin[ation]” about a small refinery’s hardship. § 7545(o)(9)(A)(ii)(II). And elsewhere in
the same Section, Congress authorized EPA to grant certain waivers, following consultation with DOE, “based on
a determination by the Administrator … that implementation of the requirement would severely harm the economy or environment of a State, a region, or the United
States.” § 7545(o)(7)(A)(i).
Congress thus knows how to make actions “based on a
determination” when it wants to. It did not do that for
small-refinery hardship petitions in Section 7545(o)(9)(B).
EPA’s position wrongly depends on treating “determination” in Section 7607(b)(1) not as a statutory term of art
but rather as some amorphous concept of anything that
contributed significantly to a final action.
b. Even if Section 7607(b)(1) used “determination” in
the colloquial sense, EPA would still be wrong about the
basis for these hardship-petition denial actions.
44
i. EPA’s first suggestion—that a statutory interpretation can qualify as a “determination of nationwide scope
or effect”—is nothing less than an argument that every
EPA action must go to the D.C. Circuit. EPA is a “creature[ ] of statute,” so “it possess[es] only the authority that
Congress has provided.” National Fed’n of Indep. Bus. v.
Dep’t of Lab., Occupational Safety & Health Admin., 595
U.S. 109, 117, (2022). Every EPA action is necessarily
“based on” the agency’s understanding of its statutory
authority.
It similarly cannot be the case (contra U.S. Br. 34) that
EPA’s denial actions here were based on a nationwide
determination because EPA applied a statutory interpretation “uniformly” to them. If EPA had not done that—if
it had applied a different statutory reading to similarly
situated small-refinery petitioners—that would be the
height of arbitrariness. So “if application of a national
standard … were the controlling factor, there never could
be a local or regional action” because every EPA action
“purportedly applies a national standard created by the
national statute and its national regulations.” West Virginia, 90 F.4th at 329-330. This Court should not read the
narrow nationwide-scope-or-effect exception to “swallow
the” local-or-regionally-applicable rule. Cuomo v. Clearing House Ass’n, L.L.C., 557 U.S. 519, 530 (2009).
The most obvious examples of locally applicable
actions involve EPA applying a uniform statutory standard to individual regulated parties’ factual circumstances.
Accord U.S. Br. 42. Acknowledging that reality, EPA
ultimately abandons any argument based on application
of a “uniform” standard, conceding (U.S. Br. 41) that EPA
“does not” make a nationwide-scope determination “when
it merely applies a previously established agency … interpretation to new ‘locally or regionally applicable’ circum-
45
stances.” That describes what EPA did in the final actions
challenged here: It applied its statutory interpretation to
each petitioning small refinery’s evidence about its local
economic circumstances. See pp. 34-35, supra.
Insofar as EPA contends (U.S. Br. 33, 41) that what
matters here is that it promulgated its “new interpretation” at “roughly the same time” it denied the hardship
petitions, that argument does not rebut the Fifth Circuit’s
venue conclusion. For one thing, that argument would not
extend to the June 2022 Denial decisions, which merely
applied the statutory interpretation that EPA had announced months earlier in April. Pet.App.80a. 11
In any event, EPA’s choice to offer a new statutory
analysis cannot alter what determination the statute
required as the basis for every small-refinery hardship
decision. The text does not ask whether the agency made
some determination of nationwide scope or effect in connection with the action. It asks whether EPA “based” its
final action on such a determination. § 7607(b)(1). Here, as
explained above, the basis for these final actions must by
law be findings about the individual petitioning small
Despite EPA repeatedly referring to the April and June
Denials as two separate actions, EPA simultaneously argues
that those explanation documents should be treated as one for
purposes of establishing its new adjudication approach to hardship petitions. U.S. Br. 42-43 n.6. EPA urges this Court (ibid.)
to disregard the “time that passed between the[ir] finalization”
because “[b]oth denial actions here stemmed from a single
propos[al].” But obviously one proposal can lead ultimately to
multiple final actions. And according to the face of the June
explanation document, it was only the April explanation document that broke new ground: “In this action, EPA is applying
the approach proposed on December 7, 2021, and adopted in
the April 2022 [RFS] Denial.” Pet.App.80a (emphases added).
11
46
refineries’ economic circumstances. And EPA has admitted that these hardship decisions were based on just that.
See p. 34, supra.
Moreover, EPA’s new statutory interpretation was
not sufficient to produce final agency action in this context. Recall that EPA could not, and did not, use a rulemaking for its new interpretation—because to do so here
would plainly have been illegally retroactive. If EPA had
wanted judicial review to focus on its new statutory interpretation (U.S. Br. 42), it could have run a (lawful) rulemaking process. But EPA expressly chose to proceed only
by adjudication. See Pet.App.188 (“This action is not a
rulemaking”). That choice meant that EPA could produce
“final action … under this chapter” not by analyzing the
statute but rather only by evaluating the petitioning small
refineries’ economic evidence. § 7607(b)(1).
It is also no answer for EPA to contend (U.S. Br. 35,
42) that a case must go to the D.C. Circuit when “circumstances suggest” that EPA’s statutory interpretation is
“likely to be called into question” in the litigation. That
flies in the face of the courts’ consistent holding (and
EPA’s consistent position) that what matters is EPA’s
“final action,” not the petitioner’s arguments challenging
it. See pp. 7-8, supra. It will not always be apparent at the
outset of litigation, when venue is typically (and most efficiently) resolved, what aspects of an EPA action will be
called into question.
The better answer is the simpler one that also gives
the statutory terms their ordinary meaning: An EPA
action is based on a determination of nationwide scope or
effect in the rare instance when the CAA’s text directs
EPA to make a factual “determination” about the entire
nation or industry, without the need to consider individual
circumstances.
47
ii. For many of the same reasons, EPA’s RIN-costpassthrough hypothesis did not make these hardship
denial actions based on a determination of nationwide
scope or effect. Even if EPA’s passthrough hypothesis
could qualify as a “determination” under the statute when
the text does not describe it that way, see pp. 33-34, supra,
the actions denying the hardship petitions were not
“based on” it, § 7607(b)(1). EPA had merely a hypothesis—an “analysis of how” EPA “expected” individual fuels
markets to respond, Pet.App.163a-165a—that EPA
needed to test, and did test, against each hardship petition’s evidence. See pp. 34-35, supra. Only that analysis of
each refinery’s individual evidence could be the “bas[is]”
for “final action[s]” denying respondents’ hardship petitions. § 7607(b)(1) (emphasis added).
EPA’s actions were not “based on” any supposedly
nationwide RIN-cost-passthrough determination for the
additional reason that, with or without any nationwide
assessment, EPA’s denial actions here would have been
exactly the same. The government agrees (U.S. Br. 41)
that the textual “causation requirement” in Section
7607(b)(1) means that “the relevant determinations” must
be “at the core of EPA’s action.” But here, EPA did not
need any nationwide finding about any other refineries to
conclude, as it wrongly did in the denial actions, that each
of the small-refinery respondents were “able to pass along
RFS compliance costs,” were “recovering [their] costs,”
and so were suffering “no economic harm.” Pet.App.99a100a, 165a; JA 280.
In short, the conclusion that drove each denial decision
was not that all obligated parties recover their RFS costs;
it was that each of these respondents (purportedly) does.
As EPA itself explains (U.S. Br. 10): It denied respondents’ hardship petitions because it “determined that none
48
of the petitioning small refineries had rebutted [the RINcost-passthrough] presumption through evidence about
their specific circumstances.” Those were conclusions
about specific refineries, not nationwide determinations. 12
c. EPA invokes the history (U.S. Br. 35-38) of the
third-sentence exception in Section 7607(b)(1), but that
history actually undermines EPA’s position. As recounted
above, the exception was prompted by General Counsel
Frick’s description of an atypical CAA provision that,
though calling for a local action (an extension for specific
States), textually required EPA’s action to be based on a
determination about technology available throughout the
industry. See pp. 8-9, supra. That extension action did not
require or even contemplate any consideration of individualized State circumstances; EPA was tasked instead
with making a finding about the technology available
throughout the nation.
EPA’s actions on small-refinery hardship petitions
look nothing like that. The text of Section 7545(o)(9)(B),
unlike the unusual provision that Frick described, does
not ask EPA to make any “determination” about the
entire nation or industry as a basis for granting hardship
relief. It does not call for any determination at all. To the
extent it does, it calls for a determination about the individual petitioning small refinery’s economic circumstances. See pp. 33-34, supra.
EPA responds by catastrophizing (U.S. Br. 38) that if
the denials here do not qualify as based on nationwide
12
EPA’s footnoted discussion (U.S. Br. 34 n.5) of how it
chooses to respond to granted hardship petitions is irrelevant
to Section 7607(b)(1), because those downstream choices by the
agency say nothing about what was the “bas[is]” for the final
denial actions here.
49
determinations, then the third-sentence exception to Section 7607(b)(1) will be “practically insignificant.” But the
third sentence was always meant to state an exception to
the general rule for locally applicable actions. General
Counsel Frick urged the exception’s adoption to address
a CAA provision that has since been repealed. That is
likely why, before the cases involving EPA’s denial decisions here, no court had ever found a locally applicable
EPA action that was based on a determination of nationwide scope or effect. The exception is properly narrow.
d. EPA concludes by resorting to a policy argument:
It asks this Court to read “based on a determination of
nationwide scope or effect” broadly, on the theory that
judicial review will be more efficient if the D.C. Circuit
alone considers issues like EPA’s statutory analysis and
methodological framework.
Appeals to policy cannot supersede the ordinary
meaning of the terms in Section 7607(b)(1) or the confirmation of their meaning in the statutory context and history. Niz-Chavez v. Garland, 593 U.S. 155, 171 (2021) (“no
amount of policy-talk can overcome a plain statutory command”). And in any event, EPA’s policy argument falls
flat. If EPA wants to propound a new statutory interpretation and have it reviewed by only the D.C. Circuit, then
the agency need only adopt that interpretation through a
lawful rulemaking process.
Experience has proven EPA wrong in suggesting that
consolidated D.C. Circuit review of CAA actions is always
or usually best. The litigation here is a perfect example.
Because EPA persuaded several regional circuit courts to
transfer small refineries’ challenges to their hardshipdenial decisions, the D.C. Circuit ended up hearing one
massive case consolidating dozens of small refineries’
petitions for review. See p. 18, supra. That consolidation
50
made the D.C. Circuit litigation take much longer than
other small refineries’ regional-circuit challenges to
EPA’s denials of their hardship petitions.
Even more important, consolidation in the D.C. Circuit made it very difficult for the individual small refineries to get judicial attention on what ultimately matters
most: their specific economic circumstances that give rise
to their disproportionate economic hardship from the
RFS. To take just one example: In the mass D.C. Circuit
challenge alongside dozens of co-petitioners, there was no
easy way for a small refinery affiliated with one respondent here, Calumet Montana, to ask the court to focus on
the idiosyncrasies of producing blended diesel fuel in a
cold climate in winter. Yet that is exactly the sort of condition that causes Calumet Montana to face disproportionate economic hardship from the RFS.
EPA’s preference for near-universal D.C. Circuit
review would obscure the judiciary’s consideration of
individual regulated entities’ circumstances, contrary to
the essential logic of Congress’s plan for a national vs.
local divide in Section 7607(b)(1).
51
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted,
LeAnn M. Johnson Koch
Alexandra M. Bromer
Jonathan G. Hardin
Aimee E. Ford
PERKINS COIE LLP
700 Thirteenth Street N.W.
Suite 800
Washington, DC 20005
Eric Wolff
PERKINS COIE LLP
1201 3rd Avenue
Suite 900
Seattle, WA 98101
January 21, 2025
Michael R. Huston
Counsel of Record
Karl J. Worsham
Jordan M. Buckwald
PERKINS COIE LLP
2525 E. Camelback Road
Suite 500
Phoenix, AZ 85016-4227
(202) 434-1630
mhuston@perkinscoie.com
Sopen Shah
PERKINS COIE LLP
33 E. Main Street
Suite 201
Madison, WI 53703
Statutory Appendix
TABLE OF CONTENTS
42 U.S.C. § 7545(o) ............................................................ 1a
42 U.S.C. § 7607(b) .......................................................... 27a
42 U.S.C. § 1857h-5 (1970) .............................................. 29a
42 U.S.C. § 7607 (1982) .................................................. 30a
1a
42 U.S.C. § 7545
Regulations of fuels
…
(o) Renewable fuel program
(1) Definitions
In this section:
(A) Additional renewable fuel
The term “additional renewable fuel” means fuel that
is produced from renewable biomass and that is used
to replace or reduce the quantity of fossil fuel present
in home heating oil or jet fuel.
(B) Advanced biofuel
(i) In general
The term “advanced biofuel” means renewable fuel,
other than ethanol derived from corn starch, that has
lifecycle greenhouse gas emissions, as determined by
the Administrator, after notice and opportunity for
comment, that are at least 50 percent less than baseline lifecycle greenhouse gas emissions.
(ii) Inclusions
The types of fuels eligible for consideration as “advanced biofuel” may include any of the following:
(I) Ethanol derived from cellulose, hemicellulose,
or lignin.
(II) Ethanol derived from sugar or starch (other
than corn starch).
(III) Ethanol derived from waste material, including crop residue, other vegetative waste material, animal waste, and food waste and yard waste.
(IV) Biomass-based diesel.
2a
(V) Biogas (including landfill gas and sewage waste
treatment gas) produced through the conversion of organic matter from renewable biomass.
(VI) Butanol or other alcohols produced through
the conversion of organic matter from renewable biomass.
(VII) Other fuel derived from cellulosic biomass.
(C) Baseline lifecycle greenhouse gas emissions
The term “baseline lifecycle greenhouse gas emissions” means the average lifecycle greenhouse gas
emissions, as determined by the Administrator, after
notice and opportunity for comment, for gasoline or
diesel (whichever is being replaced by the renewable
fuel) sold or distributed as transportation fuel in 2005.
(D) Biomass-based diesel
The term “biomass-based diesel” means renewable
fuel that is biodiesel as defined in section 13220(f) of
this title and that has lifecycle greenhouse gas emissions, as determined by the Administrator, after notice and opportunity for comment, that are at least 50
percent less than the baseline lifecycle greenhouse gas
emissions. Notwithstanding the preceding sentence,
renewable fuel derived from co-processing biomass
with a petroleum feedstock shall be advanced biofuel
if it meets the requirements of subparagraph (B), but
is not biomass-based diesel.
(E) Cellulosic biofuel
The term “cellulosic biofuel” means renewable fuel derived from any cellulose, hemicellulose, or lignin that
is derived from renewable biomass and that has lifecycle greenhouse gas emissions, as determined by the
Administrator, that are at least 60 percent less than
the baseline lifecycle greenhouse gas emissions.
3a
(F) Conventional biofuel
The term “conventional biofuel” means renewable fuel
that is ethanol derived from corn starch.
(G) Greenhouse gas
The term “greenhouse gas” means carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons,9 sulfur hexafluoride. The Administrator may
include any other anthropogenically-emitted gas that
is determined by the Administrator, after notice and
comment, to contribute to global warming.
(H) Lifecycle greenhouse gas emissions
The term “lifecycle greenhouse gas emissions” means
the aggregate quantity of greenhouse gas emissions
(including direct emissions and significant indirect
emissions such as significant emissions from land use
changes), as determined by the Administrator, related
to the full fuel lifecycle, including all stages of fuel and
feedstock production and distribution, from feedstock
generation or extraction through the distribution and
delivery and use of the finished fuel to the ultimate
consumer, where the mass values for all greenhouse
gases are adjusted to account for their relative global
warming potential.
(I)
Renewable biomass
The term “renewable biomass” means each of the following:
(i) Planted crops and crop residue harvested
from agricultural land cleared or cultivated at any
time prior to December 19, 2007, that is either actively
managed or fallow, and nonforested.
(ii) Planted trees and tree residue from actively
managed tree plantations on non-federalௗ10 land
cleared at any time prior to December 19, 2007,
4a
including land belonging to an Indian tribe or an Indian individual, that is held in trust by the United
States or subject to a restriction against alienation imposed by the United States.
(iii) Animal waste material and animal byproducts.
(iv) Slash and pre-commercial thinnings that are
from non-federalௗ10 forestlands, including forestlands
belonging to an Indian tribe or an Indian individual,
that are held in trust by the United States or subject
to a restriction against alienation imposed by the
United States, but not forests or forestlands that are
ecological communities with a global or State ranking
of critically imperiled, imperiled, or rare pursuant to a
State Natural Heritage Program, old growth forest, or
late successional forest.
(v) Biomass obtained from the immediate vicinity
of buildings and other areas regularly occupied by
people, or of public infrastructure, at risk from wildfire.
(vi) Algae.
(vii) Separated yard waste or food waste, including
recycled cooking and trap grease.
(J) Renewable fuel
The term “renewable fuel” means fuel that is produced
from renewable biomass and that is used to replace or
reduce the quantity of fossil fuel present in a transportation fuel.
(K) Small refinery
The term “small refinery” means a refinery for which
the average aggregate daily crude oil throughput for a
calendar year (as determined by dividing the aggregate throughput for the calendar year by the number
of days in the calendar year) does not exceed 75,000
barrels.
5a
(L) Transportation fuel
The term “transportation fuel” means fuel for use in
motor vehicles, motor vehicle engines, nonroad vehicles, or nonroad engines (except for ocean-going vessels).
(2) Renewable fuel program
(A) Regulations
(i) In general
Not later than 1 year after August 8, 2005, the Administrator shall promulgate regulations to ensure that
gasoline sold or introduced into commerce in the
United States (except in noncontiguous States or territories), on an annual average basis, contains the applicable volume of renewable fuel determined in accordance with subparagraph (B). Not later than 1 year
after December 19, 2007, the Administrator shall revise the regulations under this paragraph to ensure
that transportation fuel sold or introduced into commerce in the United States (except in noncontiguous
States or territories), on an annual average basis, contains at least the applicable volume of renewable fuel,
advanced biofuel, cellulosic biofuel, and biomass-based
diesel, determined in accordance with subparagraph
(B) and, in the case of any such renewable fuel produced from new facilities that commence construction
after December 19, 2007, achieves at least a 20 percent
reduction in lifecycle greenhouse gas emissions compared to baseline lifecycle greenhouse gas emissions.
(ii) Noncontiguous State opt-in
(I) In general
On the petition of a noncontiguous State or territory,
the Administrator may allow the renewable fuel program established under this subsection to apply in the
6a
noncontiguous State or territory at the same time or
any time after the Administrator promulgates regulations under this subparagraph.
(II) Other actions
In carrying out this clause, the Administrator may—
(aa) issue or revise regulations under this paragraph;
(bb) establish applicable percentages under
paragraph (3);
(cc) provide for the generation of credits under
paragraph (5); and
(dd) take such other actions as are necessary to
allow for the application of the renewable fuels program in a noncontiguous State or territory.
(iii) Provisions of regulations
Regardless of the date of promulgation, the regulations promulgated under clause (i)—
(I) shall contain compliance provisions applicable to
refineries, blenders, distributors, and importers, as
appropriate, to ensure that the requirements of this
paragraph are met; but
(II) shall not—
(aa) restrict geographic areas in which renewable fuel may be used; or
(bb) impose any per-gallon obligation for the
use of renewable fuel.
(iv) Requirement in case of failure to promulgate regulations
If the Administrator does not promulgate regulations
under clause (i), the percentage of renewable fuel in
gasoline sold or dispensed to consumers in the United
States, on a volume basis, shall be 2.78 percent for calendar year 2006.
7a
(B) Applicable volumes
(i) Calendar years after 2005
(I) Renewable fuel
For the purpose of subparagraph (A), the applicable
volume of renewable fuel for the calendar years 2006
through 2022 shall be determined in accordance with
the following table:
Calendar year: Applicable volume of renewable
fuel (in billions of gallons):
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
4.0
4.7
9.0
11.1
12.95
13.95
15.2
16.55
18.15
20.5
22.25
24.0
26.0
28.0
30.0
33.0
36.0
(II) Advanced biofuel
For the purpose of subparagraph (A), of the volume of
renewable fuel required under subclause (I), the
8a
applicable volume of advanced biofuel for the calendar
years 2009 through 2022 shall be determined in accordance with the following table:
Calendar Year:
Applicable volume of advanced
biofuel (in billions of gallons):
0.6
0.95
1.35
2.0
2.75
3.75
5.5
7.25
9.0
11.0
13.0
15.0
18.0
21.0
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
(III) Cellulosic biofuel
For the purpose of subparagraph (A), of the volume of
advanced biofuel required under subclause (II), the
applicable volume of cellulosic biofuel for the calendar
years 2010 through 2022 shall be determined in accordance with the following table:
Calendar year:
2010
2011
Applicable volume of cellulosic
biofuel (in billions of gallons):
0.1
0.25
9a
Calendar year:
Applicable volume of cellulosic
biofuel (in billions of gallons):
0.5
1.0
1.75
3.0
4.25
5.5
7.0
8.5
10.5
13.5
16.0
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
(IV) Biomass-based diesel
For the purpose of subparagraph (A), of the volume of
advanced biofuel required under subclause (II), the
applicable volume of biomass-based diesel for the calendar years 2009 through 2012 shall be determined in
accordance with the following table:
Calendar year:
Applicable volume of biomassbased diesel (in billions
of gallons):
2009
2010
2011
2012
0.5
0.65
0.80
1.0
(ii) Other calendar years
For the purposes of subparagraph (A), the applicable
volumes of each fuel specified in the tables in clause (i)
10a
for calendar years after the calendar years specified in
the tables shall be determined by the Administrator,
in coordination with the Secretary of Energy and the
Secretary of Agriculture, based on a review of the implementation of the program during calendar years
specified in the tables, and an analysis of—
(I) the impact of the production and use of renewable fuels on the environment, including on air
quality, climate change, conversion of wetlands, ecosystems, wildlife habitat, water quality, and water
supply;
(II) the impact of renewable fuels on the energy
security of the United States;
(III) the expected annual rate of future commercial production of renewable fuels, including advanced biofuels in each category (cellulosic biofuel
and biomass-based diesel);
(IV) the impact of renewable fuels on the infrastructure of the United States, including deliverability of materials, goods, and products other than renewable fuel, and the sufficiency of infrastructure to
deliver and use renewable fuel;
(V) the impact of the use of renewable fuels on
the cost to consumers of transportation fuel and on
the cost to transport goods; and
(VI) the impact of the use of renewable fuels on
other factors, including job creation, the price and
supply of agricultural commodities, rural economic
development, and food prices.
The Administrator shall promulgate rules establishing the applicable volumes under this clause no later
than 14 months before the first year for which such
applicable volume will apply.
11a
(iii) Applicable volume of advanced biofuel
For the purpose of making the determinations in
clause (ii), for each calendar year, the applicable volume of advanced biofuel shall be at least the same percentage of the applicable volume of renewable fuel as
in calendar year 2022.
(iv) Applicable volume of cellulosic biofuel
For the purpose of making the determinations in
clause (ii), for each calendar year, the applicable volume of cellulosic biofuel established by the Administrator shall be based on the assumption that the Administrator will not need to issue a waiver for such
years under paragraph (7)(D).
(v) Minimum applicable volume of biomassbased diesel
For the purpose of making the determinations in
clause (ii), the applicable volume of biomass-based diesel shall not be less than the applicable volume listed
in clause (i)(IV) for calendar year 2012.
(3) Applicable percentages
(A) Provision of estimate of volumes of gasoline sales
Not later than October 31 of each of calendar years
2005 through 2021, the Administrator of the Energy
Information Administration shall provide to the Administrator of the Environmental Protection Agency
an estimate, with respect to the following calendar
year, of the volumes of transportation fuel, biomassbased diesel, and cellulosic biofuel projected to be sold
or introduced into commerce in the United States.
12a
(B) Determination of applicable percentages
(i) In general
Not later than November 30 of each of calendar years
2005 through 2021, based on the estimate provided under subparagraph (A), the Administrator of the Environmental Protection Agency shall determine and
publish in the Federal Register, with respect to the
following calendar year, the renewable fuel obligation
that ensures that the requirements of paragraph (2)
are met.
(ii) Required elements
The renewable fuel obligation determined for a calendar year under clause (i) shall—
(I) be applicable to refineries, blenders, and importers, as appropriate;
(II) be expressed in terms of a volume percentage
of transportation fuel sold or introduced into commerce in the United States; and
(III) subject to subparagraph (C)(i), consist of a
single applicable percentage that applies to all categories of persons specified in subclause (I).
(C) Adjustments
In determining the applicable percentage for a calendar year, the Administrator shall make adjustments—
(i) to prevent the imposition of redundant obligations on any person specified in subparagraph
(B)(ii)(I); and
(ii)
to account for the use of renewable fuel during the previous calendar year by small refineries that
are exempt under paragraph (9).
13a
(4) Modification of greenhouse gas reduction percentages
(A) In general
The Administrator may, in the regulations under the
last sentence of paragraph (2)(A)(i), adjust the 20 percent, 50 percent, and 60 percent reductions in lifecycle
greenhouse gas emissions specified in paragraphs
(2)(A)(i) (relating to renewable fuel), (1)(D) (relating to
biomass-based diesel), (1)(B)(i) (relating to advanced
biofuel), and (1)(E) (relating to cellulosic biofuel) to a
lower percentage. For the 50 and 60 percent reductions, the Administrator may make such an adjustment only if he determines that generally such reduction is not commercially feasible for fuels made using
a variety of feedstocks, technologies, and processes to
meet the applicable reduction.
(B) Amount of adjustment
In promulgating regulations under this paragraph,
the specified 50 percent reduction in greenhouse gas
emissions from advanced biofuel and in biomass-based
diesel may not be reduced below 40 percent. The specified 20 percent reduction in greenhouse gas emissions
from renewable fuel may not be reduced below 10 percent, and the specified 60 percent reduction in greenhouse gas emissions from cellulosic biofuel may not be
reduced below 50 percent.
(C) Adjusted reduction levels
An adjustment under this paragraph to a percent less
than the specified 20 percent greenhouse gas reduction for renewable fuel shall be the minimum possible
adjustment, and the adjusted greenhouse gas reduction shall be established by the Administrator at the
maximum achievable level, taking cost in consider-
14a
ation, for natural gas fired corn-based ethanol plants,
allowing for the use of a variety of technologies and
processes. An adjustment in the 50 or 60 percent
greenhouse gas levels shall be the minimum possible
adjustment for the fuel or fuels concerned, and the adjusted greenhouse gas reduction shall be established
at the maximum achievable level, taking cost in consideration, allowing for the use of a variety of feedstocks, technologies, and processes.
(D) 5-year review
Whenever the Administrator makes any adjustment
under this paragraph, not later than 5 years thereafter
he shall review and revise (based upon the same criteria and standards as required for the initial adjustment) the regulations establishing the adjusted level.
(E) Subsequent adjustments
After the Administrator has promulgated a final rule
under the last sentence of paragraph (2)(A)(i) with respect to the method of determining lifecycle greenhouse gas emissions, except as provided in subparagraph (D), the Administrator may not adjust the percent greenhouse gas reduction levels unless he determines that there has been a significant change in the
analytical methodology used for determining the
lifecycle greenhouse gas emissions. If he makes such
determination, he may adjust the 20, 50, or 60 percent
reduction levels through rulemaking using the criteria
and standards set forth in this paragraph.
(F) Limit on upward adjustments
If, under subparagraph (D) or (E), the Administrator
revises a percent level adjusted as provided in subparagraphs (A), (B), and (C) to a higher percent, such
higher percent may not exceed the applicable percent
15a
specified in paragraph (2)(A)(i), (1)(D), (1)(B)(i), or
(1)(E).
(G) Applicability of adjustments
If the Administrator adjusts, or revises, a percent
level referred to in this paragraph or makes a change
in the analytical methodology used for determining
the lifecycle greenhouse gas emissions, such adjustment, revision, or change (or any combination thereof)
shall only apply to renewable fuel from new facilities
that commence construction after the effective date of
such adjustment, revision, or change.
(5) Credit program
(A) In general
The regulations promulgated under paragraph (2)(A)
shall provide—
(i) for the generation of an appropriate amount of
credits by any person that refines, blends, or imports
gasoline that contains a quantity of renewable fuel
that is greater than the quantity required under paragraph (2);
(ii) for the generation of an appropriate amount of
credits for biodiesel; and
(iii) for the generation of credits by small refineries in accordance with paragraph (9)(C).
(B) Use of credits
A person that generates credits under subparagraph
(A) may use the credits, or transfer all or a portion of
the credits to another person, for the purpose of complying with paragraph (2).
16a
(C) Duration of credits
A credit generated under this paragraph shall be valid
to show compliance for the 12 months as of the date of
generation.
(D) Inability to generate or purchase sufficient
credits
The regulations promulgated under paragraph (2)(A)
shall include provisions allowing any person that is unable to generate or purchase sufficient credits to meet
the requirements of paragraph (2) to carry forward a
renewable fuel deficit on condition that the person, in
the calendar year following the year in which the renewable fuel deficit is created—
(i) achieves compliance with the renewable fuel requirement under paragraph (2); and
(ii) generates or purchases additional renewable
fuel credits to offset the renewable fuel deficit of the
previous year.
(E) Credits for additional renewable fuel
The Administrator may issue regulations providing:
(i) for the generation of an appropriate amount of credits by any person that refines, blends, or imports additional renewable fuels specified by the Administrator;
and (ii) for the use of such credits by the generator, or
the transfer of all or a portion of the credits to another
person, for the purpose of complying with paragraph
(2).
(6) Seasonal variations in renewable fuel use
(A) Study
For each of calendar years 2006 through 2012, the Administrator of the Energy Information Administration
shall conduct a study of renewable fuel blending to
17a
determine whether there are excessive seasonal variations in the use of renewable fuel.
(B) Regulation of excessive seasonal variations
If, for any calendar year, the Administrator of the Energy Information Administration, based on the study
under subparagraph (A), makes the determinations
specified in subparagraph (C), the Administrator of
the Environmental Protection Agency shall promulgate regulations to ensure that 25 percent or more of
the quantity of renewable fuel necessary to meet the
requirements of paragraph (2) is used during each of
the 2 periods specified in subparagraph (D) of each
subsequent calendar year.
(C) Determinations
The determinations referred to in subparagraph (B)
are that—
(i) less than 25 percent of the quantity of renewable fuel necessary to meet the requirements of paragraph (2) has been used during 1 of the 2 periods specified in subparagraph (D) of the calendar year;
(ii) a pattern of excessive seasonal variation described in clause (i) will continue in subsequent calendar years; and promulgating regulations or other requirements to impose a 25 percent or more seasonal
use of renewable fuels will not prevent or interfere
with the attainment of national ambient air quality
standards or significantly increase the price of motor
fuels to the consumer.
(D) Periods
The 2 periods referred to in this paragraph are—
(i) April through September; and
(ii) January through March and October through
December.
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(E) Exclusion
Renewable fuel blended or consumed in calendar year
2006 in a State that has received a waiver under section 7543(b) of this title shall not be included in the
study under subparagraph (A).
(F) State exemption from seasonality requirements
Notwithstanding any other provision of law, the seasonality requirement relating to renewable fuel use established by this paragraph shall not apply to any
State that has received a waiver under section 7543(b)
of this title or any State dependent on refineries in
such State for gasoline supplies.
(7) Waivers
(A) In general
The Administrator, in consultation with the Secretary
of Agriculture and the Secretary of Energy, may
waive the requirements of paragraph (2) in whole or in
part on petition by one or more States, by any person
subject to the requirements of this subsection, or by
the Administrator on his own motion by reducing the
national quantity of renewable fuel required under
paragraph (2)—
(i) based on a determination by the Administrator,
after public notice and opportunity for comment, that
implementation of the requirement would severely
harm the economy or environment of a State, a region,
or the United States; or
(ii) based on a determination by the Administrator,
after public notice and opportunity for comment, that
there is an inadequate domestic supply.
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(B) Petitions for waivers
The Administrator, in consultation with the Secretary
of Agriculture and the Secretary of Energy, shall approve or disapprove a petition for a waiver of the requirements of paragraph (2) within 90 days after the
date on which the petition is received by the Administrator.
(C) Termination of waivers
A waiver granted under subparagraph (A) shall terminate after 1 year, but may be renewed by the Administrator after consultation with the Secretary of Agriculture and the Secretary of Energy.
(D) Cellulosic biofuel
(i) For any calendar year for which the projected
volume of cellulosic biofuel production is less than the
minimum applicable volume established under paragraph (2)(B), as determined by the Administrator
based on the estimate provided under paragraph
(3)(A), not later than November 30 of the preceding
calendar year, the Administrator shall reduce the applicable volume of cellulosic biofuel required under
paragraph (2)(B) to the projected volume available
during that calendar year. For any calendar year in
which the Administrator makes such a reduction, the
Administrator may also reduce the applicable volume
of renewable fuel and advanced biofuels requirement
established under paragraph (2)(B) by the same or a
lesser volume.
(ii) Whenever the Administrator reduces the minimum cellulosic biofuel volume under this subparagraph, the Administrator shall make available for sale
cellulosic biofuel credits at the higher of $0.25 per gallon or the amount by which $3.00 per gallon exceeds
the average wholesale price of a gallon of gasoline in
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the United States. Such amounts shall be adjusted for
inflation by the Administrator for years after 2008.
(iii) Eighteen months after December 19, 2007, the
Administrator shall promulgate regulations to govern
the issuance of credits under this subparagraph. The
regulations shall set forth the method for determining
the exact price of credits in the event of a waiver. The
price of such credits shall not be changed more frequently than once each quarter. These regulations
shall include such provisions, including limiting the
credits’ uses and useful life, as the Administrator
deems appropriate to assist market liquidity and
transparency, to provide appropriate certainty for
regulated entities and renewable fuel producers, and
to limit any potential misuse of cellulosic biofuel credits to reduce the use of other renewable fuels, and for
such other purposes as the Administrator determines
will help achieve the goals of this subsection. The regulations shall limit the number of cellulosic biofuel
credits for any calendar year to the minimum applicable volume (as reduced under this subparagraph) of
cellulosic biofuel for that year.
(E) Biomass-based diesel
(i) Market evaluation
The Administrator, in consultation with the Secretary
of Energy and the Secretary of Agriculture, shall periodically evaluate the impact of the biomass-based
diesel requirements established under this paragraph
on the price of diesel fuel.
(ii) Waiver
If the Administrator determines that there is a significant renewable feedstock disruption or other market
circumstances that would make the price of biomassbased diesel fuel increase significantly, the Admin-
21a
istrator, in consultation with the Secretary of Energy
and the Secretary of Agriculture, shall issue an order
to reduce, for up to a 60-day period, the quantity of biomass-based diesel required under subparagraph (A)
by an appropriate quantity that does not exceed 15
percent of the applicable annual requirement for biomass-based diesel. For any calendar year in which the
Administrator makes a reduction under this subparagraph, the Administrator may also reduce the applicable volume of renewable fuel and advanced biofuels requirement established under paragraph (2)(B) by the
same or a lesser volume.
(iii) Extensions
If the Administrator determines that the feedstock
disruption or circumstances described in clause (ii) is
continuing beyond the 60-day period described in
clause (ii) or this clause, the Administrator, in consultation with the Secretary of Energy and the Secretary
of Agriculture, may issue an order to reduce, for up to
an additional 60-day period, the quantity of biomassbased diesel required under subparagraph (A) by an
appropriate quantity that does not exceed an additional 15 percent of the applicable annual requirement
for biomass-based diesel.
(F) Modification of applicable volumes
For any of the tables in paragraph (2)(B), if the Administrator waives—
(i) at least 20 percent of the applicable volume requirement set forth in any such table for 2 consecutive
years; or
(ii) at least 50 percent of such volume requirement
for a single year, the Administrator shall promulgate
a rule (within 1 year after issuing such waiver) that
modifies the applicable volumes set forth in the table
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concerned for all years following the final year to
which the waiver applies, except that no such modification in applicable volumes shall be made for any year
before 2016. In promulgating such a rule, the Administrator shall comply with the processes, criteria, and
standards set forth in paragraph (2)(B)(ii).
(8) Study and waiver for initial year of program
(A) In general
Not later than 180 days after August 8, 2005, the Secretary of Energy shall conduct for the Administrator
a study assessing whether the renewable fuel requirement under paragraph (2) will likely result in significant adverse impacts on consumers in 2006, on a national, regional, or State basis.
(B) Required evaluations
The study shall evaluate renewable fuel—
(i) supplies and prices;
(ii) blendstock supplies; and
(iii) supply and distribution system capabilities.
(C) Recommendations by the Secretary
Based on the results of the study, the Secretary of Energy shall make specific recommendations to the Administrator concerning waiver of the requirements of
paragraph (2), in whole or in part, to prevent any adverse impacts described in subparagraph (A).
(D) Waiver
(i) In general
Not later than 270 days after August 8, 2005, the Administrator shall, if and to the extent recommended by
the Secretary of Energy under subparagraph (C),
waive, in whole or in part, the renewable fuel requirement under paragraph (2) by reducing the national
23a
quantity of renewable fuel required under paragraph
(2) in calendar year 2006.
(ii) No effect on waiver authority
Clause (i) does not limit the authority of the Administrator to waive the requirements of paragraph (2) in
whole, or in part, under paragraph (7).
(9) Small refineries
(A) Temporary exemption
(i) In general
The requirements of paragraph (2) shall not apply to
small refineries until calendar year 2011.
(ii) Extension of exemption
(I) Study by Secretary of Energy
Not later than December 31, 2008, the Secretary of
Energy shall conduct for the Administrator a study to determine whether compliance with the requirements of
paragraph (2) would impose a disproportionate economic
hardship on small refineries.
(II) Extension of exemption
In the case of a small refinery that the Secretary
of Energy determines under subclause (I) would be subject to a disproportionate economic hardship if required
to comply with paragraph (2), the Administrator shall extend the exemption under clause (i) for the small refinery
for a period of not less than 2 additional years.
(B) Petitions based on disproportionate economic hardship
(i) Extension of exemption
A small refinery may at any time petition the Administrator for an extension of the exemption under
24a
subparagraph (A) for the reason of disproportionate
economic hardship.
(ii) Evaluation of petitions
In evaluating a petition under clause (i), the Administrator, in consultation with the Secretary of Energy,
shall consider the findings of the study under subparagraph (A)(ii) and other economic factors.
(iii) Deadline for action on petitions
The Administrator shall act on any petition submitted
by a small refinery for a hardship exemption not later
than 90 days after the date of receipt of the petition.
(C) Credit program
If a small refinery notifies the Administrator that the
small refinery waives the exemption under subparagraph (A), the regulations promulgated under paragraph (2)(A) shall provide for the generation of credits
by the small refinery under paragraph (5) beginning
in the calendar year following the date of notification.
(D) Opt-in for small refineries
A small refinery shall be subject to the requirements
of paragraph (2) if the small refinery notifies the Administrator that the small refinery waives the exemption under subparagraph (A).
(10) Ethanol market concentration analysis
(A) Analysis
(i) In general
Not later than 180 days after August 8, 2005, and annually thereafter, the Federal Trade Commission
shall perform a market concentration analysis of the
ethanol production industry using the HerfindahlHirschman Index to determine whether there is
25a
sufficient competition among industry participants to
avoid price-setting and other anticompetitive behavior.
(ii) Scoring
For the purpose of scoring under clause (i) using the
Herfindahl-Hirschman Index, all marketing arrangements among industry participants shall be considered.
(B) Report
Not later than December 1, 2005, and annually thereafter, the Federal Trade Commission shall submit to
Congress and the Administrator a report on the results of the market concentration analysis performed
under subparagraph (A)(i).
(11) Periodic reviews
To allow for the appropriate adjustment of the requirements described in subparagraph (B) of paragraph (2), the Administrator shall conduct periodic reviews of—
(A) existing technologies;
(B) the feasibility of achieving compliance with the
requirements; and
(C) the impacts of the requirements described in
subsection (a)(2)ௗ11 on each individual and entity described in paragraph (2).
(12) Effect on other provisions
Nothing in this subsection, or regulations issued pursuant to this subsection, shall affect or be construed to
affect the regulatory status of carbon dioxide or any
other greenhouse gas, or to expand or limit regulatory
authority regarding carbon dioxide or any other
greenhouse gas, for purposes of other provisions (including section 7475) of this chapter. The previous
26a
sentence shall not affect implementation and enforcement of this subsection.
__________________
9
So in original. The word “and” probably should appear.
10
So in original. Probably should be “non-Federal”.
11
So in original. Subsection (a) does not contain a par. (2).
***
27a
42 U.S.C. § 7607
Administrative proceedings and judicial review
…
(b) Judicial review
(1) A petition for review of action of the Administrator in
promulgating any national primary or secondary ambient
air quality standard, any emission standard or requirement under section 7412 of this title, any standard of performance or requirement under section 7411 of this title, 1
any standard under section 7521 of this title (other than a
standard required to be prescribed under section
7521(b)(1) of this title), any determination under section
7521(b)(5)1 of this title, any control or prohibition under
section 7545 of this title, any standard under section 7571
of this title, any rule issued under section 7413, 7419, or
under section 7420 of this title, or any other nationally applicable regulations promulgated, or final action taken, by
the Administrator under this chapter may be filed only in
the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator’s action
in approving or promulgating any implementation plan
under section 7410 of this title or section 7411(d) of this
title, any order under section 7411(j) of this title, under
section 7412 of this title, under section 7419 of this title, or
under section 7420 of this title, or his action under section
1857c-10(c)(2)(A), (B), or (C) of this title (as in effect before August 7, 1977) or under regulations thereunder, or
revising regulations for enhanced monitoring and compliance certification programs under section 7414(a)(3) of
this title, or any other final action of the Administrator
under this chapter (including any denial or disapproval by
the Administrator under subchapter I) which is locally or
1
So in original.
28a
regionally applicable may be filed only in the United
States Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be
filed only in the United States Court of Appeals for the
District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such
action the Administrator finds and publishes that such action is based on such a determination. Any petition for review under this subsection shall be filed within sixty days
from the date notice of such promulgation, approval, or
action appears in the Federal Register, except that if such
petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds
arise. The filing of a petition for reconsideration by the
Administrator of any otherwise final rule or action shall
not affect the finality of such rule or action for purposes
of judicial review nor extend the time within which a petition for judicial review of such rule or action under this
section may be filed, and shall not postpone the effectiveness of such rule or action.
(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall
not be subject to judicial review in civil or criminal proceedings for enforcement. Where a final decision by the
Administrator defers performance of any nondiscretionary statutory action to a later time, any per-son may challenge the deferral pursuant to paragraph (1).
***
29a
…
42 U.S.C. § 1857h-5 (1970)
Administrative proceedings and judicial review
(b) (1) A petition for review of action of the Administrator
in promulgating any national primary or secondary ambient air quality standard, any emission standard under section 1857c-7 of this title, any standard of performance under section 1857c-6 of this title, any standard under section 1857f-1 of this title (other than a standard required to
be prescribed under section 1857f-l(b)(1) of this title), any
determination under section 1857f-1(b)(5) of this title, any
control or prohibition under section 1857f-6c of this title
or any standard under section 1857f-9 of this title may be
filed only in the United States Court of Appeals for the
District of Columbia. A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857c-5 of this title or section 1857c-6(d) of this title, may be filed only in the United
States Court of Appeals for the appropriate circuit. Any
such petition shall be filed within 30 days from the date of
such promulgation or approval, or after such date if such
petition is based solely on grounds arising after such 30th
day.
(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall
not be subject to judicial review in civil or criminal proceedings for enforcement.
***
30a
42 U.S.C. § 7607 (1982)
Administrative proceedings and judicial review
…
(b) Judicial review
(1) A petition for review of action of the Administrator
in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under section 7412 of this title, any standard of
performance or requirement under section 7411 of this title, any standard under section 7521 of this title (other
than a standard required to be prescribed under section
7521(b)(l) of this title), any determination under section
7521(b)(5) of this title, any control or prohibition under
section 7545 of this title, any standard under section 7571
of this title, any rule issued under section 7413, 7419, or
under section 7420 of this title, or any other nationally applicable regulations promulgated, or final action taken, by
the Administrator under this chapter may be filed only in
the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator’s action
in approving or promulgating any implementation plan
under section 7410 of this title or section 74ll(d) of this title, any order under section 74ll(j) of this title, under section 7412(c) of this title, under section 7413(d) of this title,
under section 7419 of this title, or under section 7420 of
this title, or his action under section 1857c-10(c)(2)(A), (B),
or (C) of this title (as in effect before August 7, 1977) or
under regulations thereunder, or any other final action of
the Administrator under this chapter (including any denial or disapproval by the Administrator under subchapter I of this chapter) which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. Notwithstanding the
31a
preceding sentence a petition for review of any action referred to in such sentence may be filed only in the United
States Court of Appeals for the District of Columbia if
such action is based on a determination of nationwide
scope or effect and if in taking such action the Administrator finds and publishes that such action is based on
such a determination. Any petition for review under this
subsection shall be filed within sixty days from the date
notice of such promulgation, approval, or action appears
in the Federal Register, except that if such petition is
based solely on grounds arising after such sixtieth day,
then any petition for review under this subsection shall be
filed within sixty days after such grounds arise.
(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall
not be subject to judicial review in civil or criminal proceedings for enforcement.
***
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.